Judge advocates in combat

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Title:
Judge advocates in combat Army lawyers in military operations from Vietnam to Haiti
Physical Description:
xix, 413 p. : ill., maps ; 24 cm.
Language:
English
Creator:
Borch, Frederic L., 1954-
Publisher:
Office of the Judge Advocate General and Center of Military History, United States Army :
For sale by the Supt. of Docs., U.S. G.P.O.
Place of Publication:
Washington, D.C
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Subjects / Keywords:
Judge advocates -- History -- United States   ( lcsh )
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federal government publication   ( marcgt )
bibliography   ( marcgt )
non-fiction   ( marcgt )

Notes

Summary:
A narrative history, includes actions in Vietnam, Grenada, Panama, the Persian Gulf, Somalia, and Haiti, as well as eleven non-combat deployments such as resettlement operations, disaster relief, and civil disturbance operations. Presents the thesis that the role of the military lawyer in military operations has gradually evolved into an "operational law" (OPLAW), which has enhanced mission success.
Bibliography:
Includes bibliographical references (p. 369-391) and index.
Additional Physical Form:
Also issued in microfiche.
Statement of Responsibility:
by Frederic L. Borch.

Record Information

Source Institution:
University of Florida
Holding Location:
ILLMC
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
oclc - 122911016
System ID:
AA00001356:00001

Full Text
















This volume was donated to LLMC
to enrich its on-line offerings and
for purposes of long-term preservation by

Columbia University Law Library










JUDGE ADVOCATES
IN
COMBAT
Army Lawyers in Military Operations
from Vietnam to Haiti


by
Frederic L. Borch


OFFICE OF THE JUDGE ADVOCATE GENERAL
and
CENTER OF MILITARY HISTORY
UNITED STATES ARMY
WASHINGTON, D.C., 2001
















Library of Congress Cataloging-in-Publication Data


Borch, Frederic L., 1954-
Judge advocates in combat: Army lawyers in military operations from
Vietnam to Haiti /by Frederic L. Borch
p. cm.
Includes bibliographical references and index.
1. Judge advocates-United States-History. 2. United States. Army-
Lawyers-History. I. Title.


KF7307 .B67 2001
355.3'4-dc21


2001031309


K3OF


2co I










First Printing-CMH Pub 70-77


For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402











Foreword


As the U.S. Army has evolved in the past half-century, the Judge
Advocate General's Corps has been an important part of its maturing
ability to provide effective military force to meet a broad range of chal-
lenges. Since the opening days of American involvement in Vietnam, the
U.S. Army has been working to meet national security objectives under
close public scrutiny in complex, demanding situations. Those condi-
tions call for commanders to make full use of all available staff input,
and the special training of the Staff Judge Advocate has often made the
lawyer one of the most important sources of insight. This volume
recounts numerous instances when new challenges would not have been
met so effectively had that specialized staff work not been available.
At one level this is the chronicle of judge advocates at work in the
theater of active operations. It provides valuable information on the
organization, tasks, and performance of legal offices in a wide array of
activities. The author uses the term "combat" to evoke the theater of
active operations-justifiable shorthand, but calling too little attention
to the operations other than war covered very ably in the last chapter.
Throughout, the reader is introduced to Army lawyers who met unex-
pected requirements while working under tough, demanding conditions.
At another level, this is the history of the evolution of "operational
law"-the concept that put those Army lawyers at the right hand of
commanders during the deployments of the 1990s so that everything
from Status of Forces Agreements to application of the principles of the
Law of Land Warfare would be integrated into the planning and execu-
tion of operations such as JUST CAUSE and DESERT STORM as well as the
many "peacekeeping" operations and deployments in support of civil
authorities. This operational focus of judge advocate staff support-in
addition to traditional legal support-has enhanced mission success in
the politically charged and militarily ambiguous operations that have
become common in our era.
Commanders and staff officers should read this book to see how
the Army lawyer's role has evolved. Judge advocates should read it
because it offers a shortcut to knowledge that ordinarily is gained only
through experience. Those interested in the Army's history should read
it because it provides details published in no other source. It provides









operational context so that the military lawyer's contribution can be
easily understood against the larger backdrop, and it describes the
lawyer's work in ways that will be accessible to all.


Washington, D.C.
29 May 2001


GORDON R. SULLIVAN
General, USA (Ret.)











The Author


Col. Frederic L. Borch III is a career Army judge advocate. He has an
A.B. in history from Davidson College, a J.D. from the University of
North Carolina at Chapel Hill, an LL.M. in international and compara-
tive law from the University of Brussels, Belgium, and an LL.M. in
military law from the Judge Advocate General's School in
Charlottesville, Virginia.
Since entering the Judge Advocate General's Corps in 1980,
Colonel Borch has served in a variety of assignments in the United
States and overseas, including tours at the Infantry Center at Fort
Benning, XVIII Airborne Corps at Fort Bragg, 21st Support Command
in Germany, and the 4th Battalion, 325th Airborne Infantry Combat
Team, in Italy. His area of expertise is military justice, and he taught
criminal law at the Judge Advocate General's School in Charlottesville
and served as a member of the Department of Defense Joint Service
Committee on Military Justice while assigned to the Office of the
Judge Advocate General in the Pentagon. Colonel Borch also super-
vised the high-profile prosecution of drill sergeants charged with sexu-
al misconduct at Aberdeen Proving Ground and subsequently served as
the Deputy Chief, Government Appellate Division, U.S. Army Legal
Services Agency. He also served as Staff Judge Advocate, U.S. Army
Signal Center, Fort Gordon, Georgia. Colonel Borch is presently
attending the Naval War College, Newport, Rhode Island. He is the co-
author of two books: The Purple Heart: A History ofAmerica's Oldest
Military Decoration and The Soldier's Medal: A History of the U.S.
Army's Highest Award for Non-Combat Valor.














Preface


This is a narrative history of Army lawyers in military operations from
1959-when the first judge advocate reported for duty in Vietnam-to
1996-when the last Army lawyers participating in United Nations
operations in Haiti returned home to the United States. Its principal
theme is the evolution of the role of judge advocates in military opera-
tions and how this development has enhanced commanders' ability to
succeed. As this role changed dramatically during this period, Judge
Advocates in Combat explores how soldier-lawyers have evolved from
their Vietnam-era responsibility simply to provide traditional legal ser-
vices-military justice, claims, legal assistance, administrative law-to
today's practice of "operational law" in which Army lawyers provide a
broad range of legal services that directly affect the conduct of an oper-
ation. This new judge advocate role, and the accompanying emergence
of operational law-a process that came to full bloom in the 1990s-has
increased commanders' ability to achieve mission success in a variety of
environments, from conventional combat to operations other than war.
The book explores this theme by examining what individuals did as
judge advocates in Vietnam, Grenada, Panama, the Persian Gulf,
Somalia, Haiti, and selected other deployments. When people read
about those who served at home and abroad as soldier-lawyers, they
want answers to at least three questions: Who was there? What did they
do? How did that enhance the commanders' ability to accomplish the
assigned mission?
In answering the first two questions, Judge Advocates in Combat
identifies the men and women who deployed in a particular military
operation, and it looks at selected courts-martial, military personnel
and foreign claims, legal assistance, administrative and contract law
issues, and international and operational law matters handled by those
judge advocates. Examining who was there and what they did is impor-
tant, because it captures for posterity the contributions of judge advo-
cates of an earlier era. Viewed from this perspective, Judge Advocates
in Combat is a contemporary branch history. But, in light of the princi-
pal theme-the evolution of the Army lawyer's role from that of a spe-
cial staff officer providing traditional legal support to the current role
in which judge advocates are integrated into operations at all levels-








Judge Advocates in Combat answers the third question by also focusing
on those events where Army lawyers blazed new paths, enhancing mis-
sion success in nontraditional ways.
During the Vietnam era, lawyers who took on nontraditional roles
did so on an individual basis; there was no institutional recognition that
such matters were appropriate issues for judge advocates. In 1960, for
example, during a coup d'etat led by disaffected South Vietnamese
paratroopers, Army judge advocate Lt. Col. Paul J. Durbin left the safe-
ty of his home to observe the rebels in action. As a result, Durbin was
able to see-and explain-to an American adviser accompanying the
coup leader that "advising" this Vietnamese paratroop colonel did not
include participating in a rebellion against the Saigon government. Lt.
Col. George C. Eblen, who followed Durbin as the lone Army judge
advocate in Vietnam, decided to begin monitoring war crimes commit-
ted by the Viet Cong against Americans. Eblen's decision to tape record
all interviews of U.S. personnel claiming mistreatment resulted in a
command policy that a military lawyer participate in all future debrief-
ings involving war crimes. Again, like Durbin, Colonel Eblen stepped
outside his traditional role.
Similarly, then-Col. George S. Prugh, the staff judge advocate for
the Military Assistance Command, Vietnam (MACV), from 1964 to
1966, spearheaded a number of unique efforts ranging from compiling
and translating all existing Vietnamese laws to establishing a legal advi-
sory program that monitored the real-world operation of South
Vietnam's criminal justice system. Of particular significance was
Prugh's successful effort in persuading the South Vietnamese military
that its conflict with the Viet Cong and North Vietnamese was no longer
an internal civil disorder. This was a significant achievement for, once
its military leaders had accepted the international nature of the conflict,
the South Vietnamese government also acceded to this view-and
agreed that the provisions of the 1949 Geneva Convention on Prisoners
of War would be applied.
Persuading the South Vietnamese armed forces to change their
position concerning the conflict-and therefore their view of the status
and treatment of Viet Cong and North Vietnamese prisoners-was not
a judge advocate responsibility, and Colonel Prugh had not been tasked
with resolving this matter. Recognizing, however, that the increasing
number of Americans captured by the Viet Cong and North Vietnamese
would have significantly enhanced chances to survive if South Vietnam
applied the Geneva Prisoners of War Convention tQ enemy soldiers in
its custody, Prugh and his staff spearheaded the efforts to bring about
this change.








After Prugh's departure from Vietnam, Col. Edward W. Haughney,
his successor as MACV staff judge advocate, continued using the law
to support the mission in related ways. Thus, while the MACV provost
marshal was primarily responsible for advising the Vietnamese on pris-
oner of war issues, Haughney and his staff promulgated the first proce-
dural framework for classifying combat captives, using so-called
Article 5 tribunals. They also took the initiative in establishing a
records system identifying and listing all prisoners of war.
The individual initiatives of Colonels Durbin, Eblen, Prugh, and
Haughney illustrated how judge advocates could provide support on a
broad range of legal and nonlegal issues associated with operations at
the Military Assistance Advisory Group and the Military Assistance
Command, Vietnam. Their efforts also demonstrated that Army lawyers
could properly focus on more than the traditional peacetime issues of
military justice, claims, administrative law, and legal assistance.
As an institution, however, the Judge Advocate General's Corps
was slow to recognize that the role of the judge advocate should go
beyond traditional peacetime legal support. Consequently, while a num-
ber of Army lawyers assigned to Vietnam after Durbin, Eblen, Prugh,
and Haughney did provide support beyond the traditional judge advo-
cate niche, the corps institutionally held fast to its traditional view of
the proper role of the judge advocate. That is, while appreciating that
individual initiatives could enhance mission success, the corps as an
organization continued to envision the role of the judge advocate in
combat operations as one of providing essentially the same legal ser-
vices as those offered in a peacetime garrison setting. Accordingly, with
the enactment of sweeping changes to the Uniform Code of Military
Justice in 1968, most military lawyers continued to concentrate on
courts-martial in their day-to-day work.
The Army's experience in Vietnam did, however, plant the seeds for
an end to the almost exclusive focus of judge advocates on military jus-
tice and peacetime legal issues. The murders at My Lai, and the inves-
tigations and courts-martial that followed, all culminated in a 1974
Department of Defense directive tasking Army judge advocates with a
new mission: ensuring that all U.S. military operations complied strict-
ly with the Law of War. Accomplishing this new responsibility now
required Army lawyers regularly to immerse themselves in many
aspects of operational planning and execution-and thus to assume a
role that earlier judge advocates did not see as a part of their duties.
A number of perceptive judge advocates realized that this new legal
mission inexorably meant judge advocate integration into operations at
all levels, and they initiated efforts to move the Corps toward this end.








These efforts, however, were both fragmented and slow. The real cata-
lyst for change occurred in late 1983, when American forces launched
Operation URGENT FURY. This operation was a "wake-up call": the wide
range of nontraditional legal issues confronted by judge advocates in
Grenada propelled the Corps' leadership to move toward a formal
recognition that a contingency-oriented Army required judge advocates
adept at handling more than traditional peacetime legal missions. It was
essential that judge advocates now be schooled in a new role and a new
legal discipline: operational law-a compendium of domestic, foreign,
and international law applicable to U.S. forces engaged in military
operations at home and abroad.-
Beginning in 1986, the Corps reconfigured its assets and training
to define and support this new judge advocate role. By 1989, when U.S.
forces successfully removed Panamanian dictator Manuel Noriega from
power during Operation JUST CAUSE, judge advocates were fully pre-
pared to advise commanders on a broad range of legal and nonlegal
issues. Thus, Lt. Col. James J. Smith, the 82d Airborne Division staff
judge advocate, parachuted into Panama with the lead elements of the
assault command post so that he would be able to provide accurate and
timely support from the outset of the operation. Less than a year later,
when U.S. forces deployed to the Persian Gulf in Operations DESERT
SHIELD and DESERT STORM, the evolution in the role of the judge advo-
cate was virtually complete. Commanders at all levels now saw their
judge advocates as important force-multipliers. They were first-class
attorneys who prosecuted and defended courts-martial, adjudicated
claims, and provided legal assistance. But their new role meant that
these same lawyers also contributed to mission success in countless
other ways-from drafting rules of engagement and providing advice
on targeting, using combat contracting to purchase special fabric for
force protection, and assisting division intelligence (G-2) personnel in
gathering war crimes evidence, to constructing bunkers and fighting
positions, investigating friendly fire incidents, and drafting war trophy
policies. By the time judge advocates deployed to Somalia in Operation
RESTORE HOPE and to Haiti in Operation UPHOLD DEMOCRACY, they
were enhancing mission success in still other ways-organizing "cash
for guns'" programs, overseeing the operation of detainee centers, and
even advising on critical political-military matters ordinarily consid-
ered the exclusive domain of professional diplomats.
In describing this transformation in the role of the judge advocate in
the Army-and in answering "Who was there? What did they do? How
did this enhance mission success?"-Judge Advocates in Combat exam-
ines major and minor operations, both at home and overseas. Separate








chapters are devoted to Vietnam, Grenada, Panama, the Persian Gulf,
Somalia, and Haiti. A final catch-all chapter looks quickly at judge advo-
cate participation in eleven operations other than war: the U.S. interven-
tion in the Dominican Republic in 1965 and 1966, Cuban refugee reset-
tlement efforts in the United States in the early 1980s, activities of the
Multinational Force and Observers in the Sinai in the 1980s and 1990s,
Hurricane Hugo relief work in the U.S. Virgin Islands in 1989, disaster
relief operations in Western Samoa in 1990, humanitarian operations in
northern Iraq in 1991, relief operations in Bangladesh after a cyclone
struck that country in 1991, migrant camp activities at Guantanamo Bay
Naval Base from 1991 to 1994, the Los Angeles civil disturbance opera-
tions of 1992, relief efforts in south Florida in the aftermath of Hurricane
Andrew in 1992, and humanitarian aid efforts in Rwanda in 1994. Some
deployments receive a fuller treatment than others, but the goal of all is
to record accurately the story of Army lawyers participating in the full
spectrum of military operations.
Having explained what the book is about, it is just as important to
state what it is not about. It is not a history of the Judge Advocate
General's Corps. It is not a history of wartime legal issues, nor a social
history of the Army as seen from the judge advocate perspective. It also
is not a collection of "lessons learned" or a history of operational law,
although the origin of the Judge Advocate General's Corps' institution-
al recognition of operational law will be obvious to the reader.
Consequently, Judge Advocates in Combat does not address such top-
ics as the Corps' training base, personnel acquisition, or legal philoso-
phy or the role of the Office of the Judge Advocate General on the
Army Staff-except where those matters illustrate the evolution of the
role of the judge advocate between 1959 and 1996.
The story of judge advocates in military operations from Vietnam
to Haiti is a rich and varied one, and this book offers some interpreta-
tions about the participation of Army lawyers in such deployments.
Ultimately, however, conclusions about the impact of judge advocates
on Army operations-and the continuing evolution of the role of the
judge advocate-are best left to each reader.

In December 1995, then-Brig. Gens. John D. Altenburg, Jr., and
Walter B. Huffman and Maj. Gen. Michael J. Nardotti, Jr., then the
Judge Advocate General, decided to capture the history of judge advo-
cates in recent contingency operations. But for their vision, Judge
Advocates in Combat: Army Lawyers in Military Operations from
Vietnam to Haiti would not exist. Moreover, this project would not have
been brought to a successful conclusion without the continuous encour-








agement and support that followed from Generals Altenburg and
Huffman after their promotions to be the Assistant Judge Advocate
General and the Judge Advocate General, respectively.
The project got under way in February 1996 with an initial confer-
ence involving Chief Historian Dr. Jeffrey J. Clarke and a group of pro-
fessional historians and book production experts at the U.S. Army
Center of Military History. The original concept was a 250-page man-
uscript that would begin with the experiences of Army lawyers in
Vietnam and end with a discussion of the role played by judge advo-
cates in Bosnia. What began as a one-year project ended five years later
with this book. Its contents reflect the contributions of more than two
hundred individuals who consented to be interviewed and material
gleaned from hundreds of official documents and secondary sources.
Many people deserve credit and my thanks, but four deserve spe-
cial recognition: Dr. Joel D. Meyerson, Col. David E. Graham, Maj.
Gen. John D. Altenburg, Jr., and Maj. Gen. (Ret.) George S. Prugh. Dr.
Meyerson, a truly outstanding historian at the Center of Military
History and an expert on the U.S. Army's experience in Vietnam, spent
many hours discussing-and editing-the chapter on lawyering in
Vietnam. But even after I had stopped researching and writing on
Vietnam, Dr. Meyerson continued discussing the book with me and
made invaluable suggestions for improvement. At the Pentagon,
Colonel Graham, serving as Chief of the International and Operational
Law Division at the Office of the Judge Advocate General, put his own
important work aside to read and reread each page of the manuscript.
Colonel Graham also spent many hours reworking the Vietnam portions
of the book, for which I am most grateful. General Altenburg's partici-
pation in this project was pivotal. He and I spent many hours talking
about the evolution of the role of the judge advocate. He saw more
clearly than anyone else the radical metamorphosis that the role of
judge advocates had undergone in the last twenty years and the impor-
tance to the Corps and the Army that someone write about this changed
role. Judge Advocates in Combat would not exist without his frequent
guidance and unwavering and direct support when it was needed most.
Finally, Maj. Gen. George S. Prugh, the Judge Advocate General from
1971 to 1974 and the author of Law at War, the first historical work
ever published on judge advocate operations in a combat environment,
deserves special thanks. General Prugh wrote letters, sent books and
articles, shared his private papers, and spent hours on the telephone
with me. His perspective was invaluable.
Those involved in providing research, editing, proofing, page lay-
out, and production of Judge Advocates in Combat also deserve special







mention. Mr. James Boyd aided my research in military personnel
records at the National Archives. Ms. Susan Carroll spent hours editing
the manuscript and made many helpful suggestions that improved the
text. She also prepared the index. Mrs. Rosemary Land ably keyed suc-
cessive iterations of changes. At the Center of Military History's
Production Services Division, Ms. Catherine Heerin, Mrs. Diane S.
Arms, and Ms. Diane Donovan proofread and checked printer's proofs.
Under the supervision of Mr. Steve Hardyman, Ms. Sherry Dowdy drew
the maps and Ms. Beth MacKenzie prepared the layout. All took a per-
sonal interest in ensuring that this book was a first-class production in
every respect.
Most of the judge advocates who took part in the military opera-
tions discussed in these pages have read portions of the manuscript
relating to their participation. Additionally, I have checked and re-
checked facts. Nonetheless, there are sure to be errors, and these are my
responsibility alone.

Newport, R.I. FREDERIC L. BORCH III
29 May 2001 Colonel, Judge Advocate
General's Corps















Contents

Chapter Page
1. V ietnam ........................................ 3
The Military Assistance Advisory Group, 1959-1962 .......... 5
MACVand US. Army Support Group, Vietnam, 1962-1965 ..... 9
A Break with Tradition .............................. 10
Intervention ................. ... .. .. ............ 13
Lawyering at MACV ............. ... ............... 16
Lawyering at USARV ............................... 26
Lawyering in the Field .............................. 31
Lawyering in the Final Years, 1970-1975 .................. 36
LastArmy Lawyers, 1972-1975 ........... ........... 47
Conclusion ...................... ............ 51
2. Grenada: Army Lawyers in Transition ................. .59
Background ...................................... 61
Phase I, Preparation and Hostilities (24-28 October 1983) ..... 63
Prisoner of War Issues ................. ............. 65
Other Legal and Nonlegal Issues ....................... 67
Lessons Learned by D+3 ............................. 68
Phase II, State of Emergency, 29 October-15 November 1983 ... 69
Law of War and Other International Law Issues ............. 70
Rules of Engagement ............. ... .............. 72
Claims ..................... ... .... ............ 73
War Trophies and Soldier Conduct ...................... 76
Criminal Law ..................................... 77
Phase III Stabilization, 15 November-15 December .......... 78
Judge Advocate Activities at Fort Bragg, 25 October-15
December 1983 ................................. 79
Conclusion ................... ... ............ 81
3. Panama: Operation Just Cause, 1989-1990 ............. 87
Organization of Legal Services ......................... 90
Judge Advocate Predeployment Activities .................. 95
Judge Advocate Activities During Hostilities ............... 99
Post-Hostilities Judge Advocate Activities ................. 103
Conclusion .................. ........ ............. 117








Chapter Page
4. Army Lawyers in DESERT SHIELD, 1990-1991 ........... 121
Organization of Legal Services ......................... 123
US. Central Command .............................. 128
US. Army Forces Central Command ..................... 138
22d Support Command ............ ................. 143
XV I HAirborne Corps ............................... 147
VII Corps ....................................... 155
On the Eve of the Ground War ............. ........... 161
5. Operation DESERT STORM, 1991 ...................... 165
United States Central Command (CENTCOM) .............. 166
22d Support Command .............................. 174
VII Corps ................... ... ................ 180
Ist Armored Division ........... ............ 186
2d Armored Cavalry Regiment ......................... 192
Summing Up ............... ......... ........... 194
6. Judge Advocates in Africa, 1992-1994 ................. 199
Organization of Legal Services ......................... 201
Operation RESTORE HOPE, December 1992-May 1993 ......... 205
United Nations Operation in Somalia II, May 1993-March 1994 218
Conclusion ................... .... ... ............. 226
7. Judge Advocates in Haiti, 1994-1996 ................. 229
Organization of Legal Services ......................... 233
Judge Advocate Operations in UPHOLD DEMOCRACY ........... 237
Judge Advocates in the United Nations Mission in Haiti ....... 254
Conclusion ....................... ............. 262
8. Judge Advocates in Operations Other Than War, 1965-1994 267
Operation POWER PACK, 1965-1966 ...................... 268
Cuban Refugee Resettlement Operation, 1980-1982 .......... 272
Multinational Force and Observers, 1981- ................ 274
Operation HAWKEYE, 1989 ................ ........... 276
Disaster Relief in Western Samoa, 1990 ................... 279
Operation PROVIDE COMFORT, 1991 ...................... 281
Operation SEA ANGEL, 1991 ........................... 287
Migrant Camp Operations at Guantanamo Bay Naval Base,
1991-1994 .................................... 292
Los Angeles Civil Disturbance Operations, 1992 ............ 296
Hurricane Andrew, 1992 ............... .......... 300
Operation SUPPORT HOPE, 1994 ........................ 304
Conclusion ................. .......... ............ 309








Chapter Page
9. Conclusion ........................ ............ 313
Appendixes
A. Biographical Notes on Army Lawyers .................. 329
B. Rules of Engagement ............................. 351
Bibliography ............. ......... ................ 369
Index ........... ........... ........ ............ 393

Charts
No.
1. Legal Organization of U.S. Army Units in Vietnam ....... 18
2. Organization of the Office of the Staff Judge Advocate,
Military Assistance Command, Vietnam ............. 20
3. Organization of Staff Judge Advocate's Office, U.S. Army,
Vietnam, December 1967 ........................ 27
4. Organization of Staff Judge Advocate's Office, U.S. Army,
Vietnam, September 1968 ........................ 28
5. Legal Services in Operation JUST CAUSE ............ ... 91
6. Legal Organization of U.S. Army Units (with Staff Judge
Advocates), Persian Gulf, February 1991 ............ 124
7. Legal Organization at U.S. Central Command,
February 1991 ................................ 129
8. Legal Organization at U.S. Army Forces Central
Command, February 1991 .................... ... 139
9. Office of the Staff Judge Advocate, VII Corps,
January 1991 ................................. 157
10. Legal Organization of Army Judge Advocates in Somalia,
M arch 1993 .................................. 206
11. Legal Organization of Army Judge Advocates in
UNOSOM II, November 1993 .................... 219
12. Organization of Legal Services in UPHOLD DEMOCRACY,
Decem ber 1994 ............................... 235
13. Organization of Legal Services for United Nations Mission
in Haiti, April 1995 ............................. 256
14. Organization of Legal Services for Combined Task Force
PROVIDE COMFORT, May 1991 ................... 284
15. Staff Organization for Operation SEA ANGEL ............ 290

Maps
1. Indochina, 1960 ..................... ............. 4









No. Page
2. South Vietnam: Judge Advocate Locations, June 1968 ..... 17
3. South Vietnam: Judge Advocate Locations, December 1970 .. 39
4. Operation URGENT FURY: Judge Advocate Locations, Grenada,
October-December 1983 ........................ 60
5. Deployment to Panama ............................ 88
6. Operation JUST CAUSE: Judge Advocate Locations, Panama,
20 December 1989-31 January 1990 ............... 92
7. The M iddle East, 1990 ............................. 122
8. DESERT SHIELD: Judge Advocate Locations,
M id-January 1991 ....... ...................... 126
9. DESERT STORM: Judge Advocate Locations,
28 February 1991 .............................. 168
10. Operation RESTORE HOPE, 4 December 1992-4 May 1993,
and Operation UNOSOM II, 4 May 1993-31 March 1994:
Judge Advocate Locations, Somalia ................ 202
11. Operation UPHOLD DEMOCRACY, 19 September 1994-31
March 1995, and Operation UNMIH, 31 March
1995-February 1996: Judge Advocate Locations, Haiti 232
12. Operation POWER PACK: Judge Advocate Locations,
Dominican Republic, 1965-1966 .................. 269
13. Disaster Relief: Judge Advocate Location, Western
Samoa, February-March 1990 .................... 280
14. Operation PROVIDE COMFORT: Judge Advocate
Locations, April-October 1991 ........ ....... ... 283
15. Operation SEA ANGEL: Judge Advocate Location,
Bangladesh, May-June 1991 ...................... 289
16. Operation SUPPORT HOPE: Judge Advocate Locations,
Rwanda, Uganda, Zaire, July-August 1994 ........... 306

Illustrations
Lt. Col. Paul J. Durbin and Pfc. Matthew Guarino on a military
exercise, Thailand, 1963 ............................ 6
Lt. Col. George C. Eblen with Lt. Gen. Le Van Ty, 1962 ...... 8
Capt. John T. Sherwood, Jr., with Col. George S. Prugh, 1966 14
Col. Edward J. Haughney .............................. 22
Col. Irvin M Kent ................................... 22
Maj. Gen. Kenneth J. Hodson, Judge Advocate General, with
military lawyers in Vietnam, 1968 ...... .......... 32
USARV staff judge advocate office, Long Binh, 1968 ........ 34
101 st Airborne Division staff judge advocate tent, 1968 ....... 34


xviii








Page
Defense counsel in the Green Beret affair, 1969 ............. 35
Staff judge advocate officers, 25th Infantry Division,
M arch 1970 ........................ ......... .. 37
American judge advocates receive the Vietnamese Justice
M edal, 1970 .......................... .......... 43
Capt. Ned E. Felder receives the Bronze Star, 1968 .......... 43
Capt. Jerome W. Scanlon, Jr., legal adviser to the Four-Party
Joint M military Team, 1974 .......................... 50
82d Airborne Division lawyers, Grenada, November 1983 ..... 70
Lt. Col. James J. Smith ............................... 100
General H. Norman Schwarzkopf with Col. Raymond C.
Ruppert, M arch 1991 .............................. 131
Maj. Mark P. Brewer with Kuwaiti interpreters, March 1991 ... 136
Staff judge advocates serving in Saudi Arabia, February 1991 .. 144
Office of the Staff Judge Advocate, XVIII Airborne Corps,
Rafha, February 1991 .............................. 150
Property control record book receipts, used during DESERT
STORM ......................................... 176
Cards issued to prisoners of war taken by VII Corps ......... 179
Judge advocates of XVIII Airborne and VII Corps and 22d
Support Command .............................. 182
VII Corps judge advocates ............................. 185
UNITAF judge advocate staff members, Somalia, November
1993 ....................... ............... 204
Lt. Col. Victor L. Horton .............................. 223
Judge advocates aboard the USS America off Somalia,
N ovem ber 1993 .................................. 225
Capt. Catherine M. With with Haitian orphans, February 1995 .. 254
Multinational members of the UN Mission in Haiti Force
legal staff, 1995 ...................... .......... 259
Lt. Col. Guy A. Hamlin .............. ................ 271

Illustrations courtesy of the following sources: p. 8, George C. Eblen;
p. 14, George S. Prugh; p. 32, John J. Douglass; p. 35, J. Stevens Berry;
p. 43 (top), Leonard G. Crowley; p. 43 (bottom), Ned E. Felder; p. 50,
Jerome W. Scanlon; p. 70, Jack T. Tomarchio; p. 100, James J. Smith; p.
131, Raymond C. Ruppert; p. 136, Mark P. Brewer; p. 150, Patricia A.
Ham; p. 182, William B. Hagan; p. 185, Charles E. Trant; p. 223, Victor
L. Horton; p. 254, Catherine M. With; p. 259, Mark S. Ackerman; pp. 34
(top and bottom), and 144, Frederic L. Borch; pp. 204 and 225, Richard
E. Gordon. All other illustrations from Department of the Army files.











JUDGE ADVOCATES
IN
COMBAT














1


VIETNAM


"Will you go to Vietnam?" I was asked in late 1958.
I said:"Where is that? And what will I do?"'

-Col. Paul J. Durbin
First judge Advocate in Vietnam

The American involvement in Vietnam began at the end of World War
II. Believing that Ho Chi Minh and the Viet Minh would establish a
Communist state if the French were forced out of Indochina, the United
States went to the active aid of the French. For the next thirty years,
Vietnam was the centerpiece of U.S. containment policy in Southeast
Asia and the battleground for America's longest war. Before its involve-
ment ended in 1975, some 3.5 million members of the Army, Navy, Air
Force, Marine Corps, and Coast Guard would serve in Vietnam, and
roughly 58,000 would lose their lives there.
The U.S. Army's presence in Vietnam began in August 1950, when
President Harry S. Truman established the U.S. Military Assistance
Advisory Group (MAAG), Indochina. Initially, the advisory group fun-
neled American equipment to the French and advised only on the use
of this materiel. With the departure of the French and the creation of the
Republic of Vietnam in 1955, however, American soldiers assigned to
the renamed Military Assistance Advisory Group, Vietnam, began
advising South Vietnamese Army units on tactics, training, and logis-
tics-any matter that would improve combat effectiveness. (Map 1)
By mid-1960, the MAAG numbered nearly 700 U.S. Army, Navy,
Air Force, and Marine Corps personnel, all of whom advised their
counterparts in the roughly 150,000-man Republic of Vietnam armed
forces. Since the Army of the Republic of Vietnam, with a strength of
about 140,000, made up the bulk of the South Vietnamese military, U.S.












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0 150
Miles CON SON


MAP I





VIETNAM


Army personnel were the largest advisory component, and the chief of
the Military Assistance Advisory Group was a senior Army general
officer.
With the Korean War in mind, the primary mission of the South
Vietnamese military forces was to resist an external attack from the
north.2 This meant delaying any North Vietnamese invasion until the
arrival of American reinforcements. Consequently, advisers helped
organize the South Vietnamese Army into standard infantry divisions
compatible with this conventional task. In time, the advisers busied
themselves with every aspect of the new army, from administrative pro-
cedures, personnel management, logistics, and intelligence to unit
training, mobilization, war planning, and leadership.3
After President John E Kennedy took office in January 1961, the
United States assumed an increasingly greater role in South Vietnam in
response to a growing internal Communist insurgency. Soon U.S. Army
Special Forces teams and Army helicopter units arrived there. Advisers,
who previously had been placed at the division level, were now perma-
nently assigned to infantry battalions and certain lower-echelon combat
units.4 Many began to see active combat. In February 1962 the Joint
Chiefs of Staff created the United States Military Assistance
Command, Vietnam (MACV), as the senior American military head-
quarters in Vietnam. Although the MAAG was not formally dissolved
until May 1964, MACV now directed the ever-expanding American
involvement in that country. By 1962 U.S. forces had increased to
11,000 men, and the MACV commander, a four-star Army general,
worked diligently to combat the growing strength of the guerrillas who,
aided by the North Vietnamese, were everywhere undermining the gov-
ernment of President Ngo Dinh Diem.

The Military Assistance Advisory Group, 1959-1962
The mission of the MAAG staff judge advocate was to render legal aid
and advice to the members of the advisory element and to act as legal
adviser to the Director of Military Justice, the Judge Advocate General
equivalent in the South Vietnamese armed forces.5 As the U.S. embassy
in Saigon had no lawyer among its personnel, the MAAG staff judge
advocate also provided legal advice to the ambassador and his staff.
The first military lawyer assigned for duty in Vietnam, Lt. Col.
Paul J. Durbin, arrived in June 1959. Other than a part-time Vietnamese
secretary assisting with typing, he had no staff-nor had he received
much guidance from the Judge Advocate General's Office in
Washington, D.C., or JAGO as it was known. Overseas communication





JUDGE ADVOCATES IN COMBAT


7.2


Lt. Col. Paul J Durbin, deputy staff judge advocate of US. Army,
Pacific, left, and Pfc. Matthew Guarino, a legal clerk in the 25th
Infantry Division, during a military exercise in Thailand, June 1963. The
first military lawyer in Vietnam, Durbin served as MAAG staff judge
advocate, June 1959-July 1961.

was difficult, and judge advocates in those days were unaccustomed to
requesting technical assistance from the Pentagon, much less coordi-
nating with it on a routine basis. Colonel Durbin was thus on his own.6
At the time an international agreement provided MAAG officers
with diplomatic status, which carried with it complete criminal and
civil immunity from Vietnamese law. Enlisted soldiers enjoyed diplo-
matic status equivalent to that of clerical personnel assigned to the U.S.
embassy. The government of South Vietnam thus had neither criminal
nor civil jurisdiction over those soldiers assigned to the advisory group,
and criminal jurisdiction over MAAG personnel was exercised exclu-
sively under the Uniform Code of Military Justice, an arrangement that
continued throughout the duration of the conflict.7
Colonel Durbin and the Army lawyers who immediately followed
him thus provided a full range of traditional judge advocate legal ser-
vices to members of the advisory component ranging from wills,
powers of attorney, and tax assistance to advice on domestic relations,
civil suits, and the filing of claims for damaged property. But no





VIETNAM


courts-martial were convened prior to Colonel Durbin's arrival or dur-
ing his tenure as staff judge advocate. The small size of the advisory
element and the quality of people assigned meant that there was little
crime that could not be handled under Article 15 of the Uniform
Code.
In order to deal with claims, Durbin established a claims office for
Vietnamese whose property was damaged by MAAG members, mostly
in traffic accidents involving military vehicles. He discovered, howev-
er, that the concept of filing a claim against the U.S. government was
completely foreign to the Vietnamese; they did not make claims against
their own government, and thus did not readily pursue claims against
the United States.8
A few months after settling his family in Saigon, Colonel Durbin
found himself in the midst of an attempted coup against the Diem gov-
ernment. On 11 November 1960, three battalions of South Vietnamese
paratroopers surrounded the presidential palace and demanded
reforms.9 That morning, Durbin awoke in the dark to the sound of auto-
matic weapons fire. He finally ventured out that afternoon, heading
toward the presidential palace. En route, he noticed a jeep pass with a
Vietnamese paratrooper colonel, accompanied by an American Army
captain. Immediately he flagged down the jeep, asked the American
officer if "he was advising on the coup," and subsequently "advised"
him to return to his quarters.10 But the whole incident forced Durbin to
consider how one might handle such unanticipated legal issues should
they reoccur in the future. As a result, on 28 June 1961, he produced
written guidance for MAAG personnel in the "event of a breakdown of
internal law and order within South Vietnam," which later became part
of the legal annex to MAAG Vietnam Operations Plan 61-61, which
addressed such contingencies."
Looking for other ways to enhance MAAG success, and believing
that South Vietnam's military justice system would work better if mod-
eled after American, rather than French, military law, Durbin met reg-
ularly with the head of the Vietnamese Directorate of Military Justice
in order to draft a new criminal code for Saigon's armed forces. The
1928 US. Manual for Courts-Martial, he thought, would be "ideal for
the Vietnamese Army, as it was much more simple than the 1951
Manual-not necessarily better-just simpler." His work on a new
Vietnamese Code of Military Justice was never finished, however, and
the project was abandoned after his departure in July 1961.12
Durbin was replaced by Lt. Col. George C. Eblen. Fluent in French,
Eblen was well suited to work with Vietnamese government officials,
many of whom were French-educated. But to accommodate a growing






JUDGE ADVOCATES IN COMBAT


Lt. Col. George C. Eblen, left,
with Lt. Gen. Le Van Ty, Chief
of Staff Army of the Republic
of Vietnam, before leaving on
an inspection tour of Vietnam,
10 February 1962


workload, he was soon joined by
an Air Force and a Navy lawyer as
well as by two more Army judge
advocates.'3 Together they contin-
ued to provide traditional judge
advocate legal services to MAAG
members. Significantly, however,
they quickly moved beyond the
delivery of such services and
began to investigate alleged viola-
tions of the Law of War. Several
Special Forces advisers captured
by the Viet Cong had escaped, and
Eblen interviewed them, tape
recording their allegations of mis-
treatment. His work prompted a
MAAG policy requiring that mili-
tary lawyers participate in all
interviews or debriefings involv-
ing alleged war crimes, and by
mid-1962 such incidents had
become so common that Eblen
tasked his Air Force judge advo-
cate with creating case files
indexing allegations of mistreat-
ment by subject matter and perpe-
trator.14 His interest in monitoring


war crimes later became the basis for the first MACV directive requir-
ing the reporting and investigation of all such incidents, one of the first
major command decisions that clearly reflected the impact that judge
advocates could have on traditionally "nonlegal" operational concerns.
In the area of traditional military justice, Colonel Eblen decided in
early 1962 that the advisory group's increased size, and the related
increase in criminal misconduct, made it desirable to convene summa-
ry and special courts-martial in Vietnam.5 No general courts-martial
were convened during his tenure as staff judge advocate, however, as
the advisory group was not a general court-martial convening authori-
ty. Consequently, when a general court was appropriate, charges were
preferred and an Article 32 investigation held in Vietnam. For referral,
the accused and the entire case packet were then sent to Schofield
Barracks in Hawaii or to Clark Air Force Base or Subic Bay Naval Base
in the Philippines, depending on the accused's branch of service.'6





VIETNAM


MACV and U.S. Army Support Group, Vietnam, 1962-1965

The creation of MACV as a unified command in February 1962 and the
establishment one month later of the U.S. Army Support Group,
Vietnam, as the Army component under MACV headquarters heralded
a greater commitment of men and materiel to Vietnam, including
lawyers. In August 1962, Colonel Eblen was replaced by Lt. Col. George
F. Westerman, and a year later, in 1963, Westerman was replaced by Lt.
Col. Richard L. Jones. All Army attorneys were assigned to the adviso-
ry group but served both MAAG and MACV headquarters, advising the
commands on nonjudicial proceedings under Article 15 of the Uniform
Code and assisting with a few summary and special courts-martial. In
any event, no general courts-martial were conducted.
The full-time claims judge advocate at MACV headquarters was
fully engaged. For example, Maj. William Myers, who arrived in
December 1963, was an experienced military attorney and handled all
monetary claims filed in Vietnam and payable under the Personnel
Claims Act, the Military Claims Act, or the Foreign Claims Act. The
most serious were those filed by the Vietnamese under the Foreign
Claims Act, generally for property damage or personal injury suffered
in traffic accidents involving MACV vehicles. These claims were set-
tled promptly to promote better relations between U.S. forces and the
Vietnamese. 17
Complementing the lawyer buildup at the advisory group and
MACV was the addition of an Army attorney to the U.S. Army
Support Group. Capt. Arthur H. Taylor arrived in September 1962 and
acted as a one-man legal adviser to the brigadier general in command.
Taylor's conditions were less than ideal. His office was a tent open to
the local weather, in which desktops were quickly covered with
insects, paper clips rusted so quickly that they could be used only
once, and the frayed electrical wire strung about the makeshift office
caused the canvas cloth to catch fire. Security was also a concern.
Shortly after arriving, Taylor learned that a Viet Cong attack was
imminent, but could find no spare personal weapons for his use. He
had his brother in the United States quickly send him a .45-caliber
semiautomatic pistol.8
Although the support group headquarters was located at Tan Son
Nhut airport in Saigon, Taylor frequently journeyed by helicopter and
plane as far north as Da Nang and as far west as Bangkok to provide
legal advice to the command and its soldiers. Most of his work con-
cerned military justice and legal assistance. One of his most time-con-
suming tasks, however, was updating commanders on amendments to





JUDGE ADVOCATES IN COMBAT


Article 15 of the Uniform Code of Military Justice. Congress had
amended the article in 1962 by increasing a commander's power to pun-
ish nonjudicially, thus providing a better alternative to trial by court-
martial for minor offenses. Ultimately, Taylor had an airplane assigned
to him for travel throughout Vietnam to see that these changes were
properly implemented."9
Capt. Charles Baldree replaced Taylor in 1963 and was in turn
replaced by Capt. Alfred A. McNamee a year later. A former infantry
officer before entering the Judge Advocate General's Corps in 1963,
McNamee also found himself serving as a doorgunner on helicopter
missions and doing other odd jobs, such as developing hostile-fire pay
policies for the command. For this and other "nonlegal" staff work,
McNamee received the Legion of Merit.20 Once again, a judge advocate
had stepped out of the "traditional," restricted role of the military
lawyer and become a more integrated part of the overall command.
With the formal disestablishment of the Military Assistance
Advisory Group in May 1964, Lt. Col. Robert J. DeMund became the
first MACV staff judge advocate. He was followed in November by
Col. George S. Prugh. Prugh, a graduate of the Army War College, was
the first judge advocate colonel to serve in Vietnam as a lawyer. A com-
bat veteran of the World War II Pacific theater, he instinctively appre-
ciated many of the difficulties encountered by American soldiers in
Vietnam. But having also been a judge advocate since 1949, with three
previous tours in the Pentagon and overseas lawyering in Germany and
Korea, he would prove adept at handling legal policy questions at a high
level. In fact, because of his broad experience, he was also to serve as
legal adviser to the U.S. embassy, the U.S. Information Service, and the
U.S. Agency for International Development. Prugh was also the last
judge advocate officially to have his family with him; the bombing of
the Brink Hotel on Christmas Eve 1964, and subsequent guerrilla
attacks on U.S. forces at Pleiku and Qui Nhon, resulted in the return of
all dependents to the United States in February 1965.2'

A Break with Tradition
The staff judge advocate's operation at the MACV was so small that
there was minimal formal organization. However, Colonel Prugh
assigned his three-person staff specific responsibilities. He tasked Lt.
Col. George R. Robinson with the claims mission; his Navy lawyer, the
sole legal assistance officer, with administrative law and international
affairs; and his Air Force judge advocate with military justice and dis-
cipline operations. All four men, however, provided legal assistance and





VIETNAM


command legal advice as necessary. Again, these responsibilities
reflected the traditional legal services provided by judge advocates
since World War II.
As the senior American legal officer in Vietnam, however, Colonel
Prugh made a decision that would prove a benchmark for change in the
way the Judge Advocate General's Corps, and the Army as a whole, his-
torically viewed the role of military attorneys. Shortly after his arrival,
he identified three major areas that were, at the time, deemed beyond
the scope of "traditional" judge advocate responsibilities. The first
involved the status and treatment of captured enemy personnel, the sec-
ond concerned the investigation and reporting of war crimes, and the
third dealt with assisting the South Vietnamese with resource control.
Each would take the Army lawyers into uncharted waters.
By the end of 1964, more than 24,000 American soldiers were in
Vietnam, with many participating in combat operations. A few were,
inevitably, captured by the enemy. Although some survived, Colonel
Prugh learned that both sides-Viet Cong and South Vietnamese-
often killed enemy soldiers wounded or captured on the battlefield. The
fratricidal nature of the war explained these killings, at least in part. But
some guerrillas were executed by the South Vietnamese simply because
they viewed the guerrillas as "Communist rebel combat captives" who
deserved summary treatment as illegitimate insurgents. In short, the
Saigon government refused to treat Viet Cong captives as prisoners of
war (POWs), maintaining that the Geneva Conventions addressed only
armed conflicts between states and not civil insurrections such as the
one taking place in South Vietnam. In fact, those guerrillas who did sur-
vive capture in the field were generally imprisoned in provincial and
national jails along with political prisoners and common criminals.22 In
sum, the South Vietnamese government viewed the enemy as criminals
and treated them accordingly. The Viet Cong were usually even harsh-
er in their treatment of captives, executing South Vietnamese soldiers
falling into their hands as a matter of routine. Initially, captured U.S.
advisers were spared, but when the government of South Vietnam pub-
licly executed a number of enemy agents, the Viet Cong killed several
captured U.S. advisers in retribution.23
Prugh and his staff quickly concluded that the Viet Cong might rec-
iprocate with better treatment of U.S. captives if South Vietnam were to
reverse its position regarding the status of Viet Cong prisoners. A uni-
lateral decision by the Saigon government to acknowledge the applica-
bility of the Geneva Prisoners of War Convention might also, he felt,
"ameliorate domestic and international criticism of the war."24 Prugh
and his staff thus worked to convince Col. Nguyen Monh Bich, the





JUDGE ADVOCATES IN COMBAT


Director of Military Justice, that it was in South Vietnam's best interest
to construct prison camps for enemy captives and to ensure their
humane treatment during imprisonment. In fact, the more enemy POWs
there were in custody, the more likely that an exchange of South
Vietnamese and American POWs could be effected.
In December 1964, Colonels Prugh and Bich visited Vietnamese
confinement facilities throughout South Vietnam. By American stan-
dards, conditions were exceptionally poor-overcrowding, insufficient
food, and a shortage of qualified security personnel prevailed. In Da
Nang, for example, Prugh saw that one jail, built by the French to house
250 individuals, contained 750 people. Not only were far too many con-
fined in the facility, but combat captives were mingled with prostitutes,
thieves, and other criminals, as well as juveniles.25 But persuading the
South Vietnamese to reverse course proved agonizingly slow. Both the
MACV commander and the U.S. ambassador strongly supported
Prugh's position, but to no immediate avail. Not until mid-1966 did the
South Vietnamese set up suitable POW facilities, and the number of
such prisoners rose to nearly 36,000 by the end of 1971. On the other
hand, the Viet Cong and North Vietnamese never acknowledged the
applicability of the Geneva Convention, and their treatment of
American and South Vietnamese captives continued to be brutal.
Nevertheless, the humane treatment eventually afforded Viet Cong and
North Vietnamese Army prisoners exerted constant pressure on the
enemy to reciprocate, and more American soldiers and airmen did
begin to survive capture.26 Colonel Prugh's decision to take on this issue
again served as an example of the positive results that could be
achieved when a judge advocate chose to act beyond the scope of his
traditional legal responsibilities.
The second issue of critical importance to Colonel Prugh involved
war crimes investigations. When he arrived in 1964, Prugh discovered
that MACV had no official policy on how violations of the Law of War
should be investigated or on who should conduct such investigations.
Believing that the command not only needed "uniform procedures for
the collection .. of evidence relative to war crimes incidents," but that
it also must "designate the agencies responsible for the conduct of
[such] investigations," Prugh authored MACV Directive 20-4,
Inspections and Investigations of War Crimes.27 In preparing the direc-
tive in early 1965, he produced a document that defined the different
types of war crimes and prohibited acts and that required their report-
ing to the MACV staff judge advocate. Prugh's original directive gov-
erned only investigations of war crimes committed against U.S. forces.
Subsequently, however, MACV lawyers revised it to include war





VIETNAM


crimes committed both by and against U.S. military and civilian per-
sonnel. By mid-1965, MACV judge advocates were advising, assist-
ing, and reviewing all war crimes investigations in Vietnam. Again,
this was a significant responsibility not previously assumed by Army
lawyers, and it remained a major mission for MACV lawyers until the
end of the war.28
The third area identified by Colonel Prugh concerned resource
control in South Vietnam. Believing that the defeat of the enemy was
impossible without a "plan of national pacification in the form of the
blockade of all enemy sources of supply," the Saigon government had
issued nearly one hundred legal decrees controlling the distribution of
resources.29 These were to be implemented by a decentralized adminis-
trative structure of province and district chiefs as well as many military
commanders who had been assigned area responsibilities, with viola-
tors being tried by military courts. Materiel critical to the enemy
effort-food, medicine, transport, and other items-was to be strictly
controlled by monitoring its use and by storing excess supply in gov-
ernment-controlled buildings. In the absence of an effective civil court
system in South Vietnam, MACV judge advocates not surprisingly
became a focal point for advice on enforcement of resource control reg-
ulations. Effective advising, however, meant collecting, translating,
indexing, interpreting, mimeographing, and distributing all relevant
government decrees and directives. It also meant learning the mechan-
ics of resource control so that practical guidance could be provided to
U.S. advisers in the field.30

Intervention
The arrival of the 173d Airborne Brigade in May 1965 marked the end
of relatively small-scale U.S. Army involvement in Vietnam and the
beginning of direct intervention. The unit was soon followed by a host
of others, Army and Marine Corps alike, as well as support units and
air units of all types and kinds. More soldiers also meant more lawyers
and major changes in judge advocate operations, particularly in the area
of military justice. In fact, due to the rising number of U.S. soldiers, it
was on this subject that the Judge Advocate General's Corps would
increasingly focus the bulk of its attention and resources. Legal advi-
sory missions and other "unconventional" endeavors would grow com-
paratively less significant to those toiling on the battlefield.
The decision to intervene with ground troops quickly established
battlefield patterns that would see the United States through the next
four years of war. In entering upon this course of escalation, no source






JUDGE ADVOCATES IN COMBAT


Col. George S. Prugh, right, MACVstaff judge advocate, presents
the Air Medal to Capt. John T Sherwood, Jr, April 1966. Prugh
established a unique advisory program in which Army lawyers like
Sherwood advised their Vietnamese counterparts on ways to improve
their legal facilities and programs.

of military pressure was overlooked. The bombing of North Vietnam,
begun in February 1965, was one part of an evolving American war
strategy. In the south, support for Saigon's pacification effort in the
countryside continued, but the main focus was on ground combat
against the enemy's main forces, both North Vietnamese and Viet Cong,
wherever they could be found. And it was in furthering this mission-
managing an ever-expanding ground war by maneuver elements of the
U.S. Army and Marine Corps-that General William C. Westmoreland
and MACV headquarters held center stage.3"
Westmoreland exercised operational control over U.S. ground
forces through three corps-size commands: I Field Force and II Field
Force for U.S. Army units and III Marine Amphibious Force for the
marines. Each was mated with a South Vietnamese regional command.
The field forces were the senior Army tactical commands, and they
reported directly to Westmoreland in Saigon. But, in addition to exer-
cising operational control over U.S. units (and any Australian, South
Korean, or other allied forces subordinate to them), the two field forces





VIETNAM


were "to maintain close liaison with MACV's senior advisers with
Vietnamese troops" and coordinate with Vietnamese Army corps com-
manders in their areas of operation.32
All Army units arriving in Vietnam were assigned to U.S. Army,
Vietnam (USARV), the service component, which exercised command,
less operational control of combat forces, and was headed by the senior
Army lieutenant general in Vietnam. Established in July 1965, the
USARV command grew rapidly-a burgeoning establishment of logisti-
cal, engineer, signal, medical, military police, and aviation units. The
numbers tell the story: of the Army's eighteen divisions, seven were in
Vietnam by the end of 1967.33 These divisions were the 1st Cavalry
Division (Airmobile); the 1st, 4th, 9th, 23d, and 25th Infantry Divisions;
and the 101st Airborne Division. The 23d Infantry (Americal) Division
was formed in Vietnam as an amalgamation of the 11th, 196th, and 198th
Light Infantry Brigades. At the peak of the buildup in early 1969, there
were 543,000 U.S. troops from all the services in Vietnam, including
recently deployed units such as the 3d Brigade, 82d Airborne Division,
and the 1st Brigade, 5th Infantry Division (Mechanized). Joining these
soldiers were some 1,100 U.S. civilian employees of the Department of
Defense and about 9,000 U.S. civilian employees of U.S. contractors.34
The typical U.S. Army division or separate brigade had a designat-
ed area of operations, usually covering several Vietnamese provinces
within one of the four Vietnamese corps areas, in which subordinate
elements sought out the enemy's forces. The 1st Cavalry Division in
1969 illustrates how a typical division operated. Its main headquarters,
the location of the commanding general and his principal staff, was
north of Saigon at Phuoc Vinh, protected by a battalion-size "palace
guard." The division rear headquarters was at Bien Hoa, the location of
most of its logistical and administrative support. The 1st Cavalry's three
brigades were dispersed, with their respective headquarters at three dif-
ferent base camps located 50 to 100 miles from each other. Battalions
in these brigades were located at still other bases, usually settled in with
artillery, and the battalions themselves were often dispersed into two or
three smaller bases. In sum, the 1st Cavalry Division was spread among
a dozen or more base camps and firebases. While the division and
brigade bases were fairly permanent in location, the firebases were not,
opening or closing depending on the division's mission. Helicopters
linked the firebases with base camps, ferrying troops, supplies, and
equipment to and from them. Platoon- and company-size elements left
their firebases-either on foot or by air-to conduct operations. Most
combat operations in Vietnam were no larger than company size. Many
were run at night.35





JUDGE ADVOCATES IN COMBAT


From 1965 to 1969, the number of Army lawyers in Vietnam mir-
rored the ground combat buildup. In early 1965 there were only four
Army lawyers in Vietnam-three at the Military Assistance Command
and one at the Support Command; by 1969 more than 135 U.S. Army
attorneys were "in country."36 From 1965 to 1969, lawyers served at the
headquarters of Military Assistance Command, Vietnam; U.S. Army,
Vietnam; I and II Field Forces; and every division and separate brigade,
as well as at a number of large support organizations such as trans-
portation and engineer commands. Map 2 shows the locations of all
units with judge advocate support between 1965 and 1969. Chart 1
illustrates the legal organization of U.S. Army units in Vietnam during
the same period.

Lawyering at MACV
In early 1965, the MACV staff judge advocate's office provided legal
support in the areas of claims, legal assistance, military justice, inter-
national law, and administrative law and also advised the Vietnamese
Director of Military Justice and his staff. The reorganization of the
American command structure that year resulted in the disappearance of
certain of the traditional lawyering tasks. By late 1966, for example, the
MACV staff judge advocate had transferred responsibility for claims
adjudication to U.S. Army, Vietnam. Additionally, the command no
longer convened courts-martial; this mission fell to USARV judge
advocates and those assigned to its subordinate units. Consequently, by
1967 the MACV legal office had a slimmed-down organizational struc-
ture: a Civil Law and Military Affairs Division, a Criminal and
International Law Division, and an Advisory Division.
In the Civil Law and Military Affairs Division, MACV judge advo-
cates advised on currency control and black marketeering, ruled on
civilian contractor employees' privileges and access to U.S. military
installations and facilities by U.S. civilians, and made determinations of
unacceptability for employment under U.S. government contracts. This
same division also advised on real estate matters, such as compensat-
ing owners for land appropriated for use as military bases or facilities
and negotiating commercial leases of property (there were more than
1,300 such leases in Saigon alone by 1970). Finally, it advised the
Central Purchasing Agency, Vietnam, on importing, distributing, and
selling all post exchange items in Vietnam.
MACV's Criminal and International Law Division furnished
"advice and guidance" to subordinate commands on disciplinary and
criminal matters. In the area of international law, the division main-








































B 0 D I A 11 FF
SUSARV SF 5

IIFF | S


JA -P C-d7 NHA TRANG
IA .. SUP Cmd
ENG Cnd sUP
25 III CTZ Cmd]

JA JA
\ LAI KHE

L CU CHI BEARCAT
MACV SAIGON

4 Cd SOUTH
JA CHINA SEA



, SOUTH VIETNAM
JUDGE ADVOCATE LOCATIONS
June 1968

Corps Tactical Zone Boundary
S150 Miles

0 150 Kilometers


MAP 2





JUDGE ADVOCATES IN COMBAT


CHART 1-LEGAL ORGANIZATION OF U.S. ARMY UNITS IN VIETNAM

Commander MACV
U.S. Military Assistance Command Staff Judge
Vietnam Advocate



Commanding General USARV
U.S. Army Staff Judge -
Vietnam Advocate



USARV Units

Other
Field
Corps Divisions Commands



Commanding General Commanding General Commanding General



StaffJudge StaffJudge StaffJudge
Advocate Advocate Advocate




------------ Technical Supervision
Command


trained files of war crimes investigations and issued opinions on the
1949 Geneva Conventions and the Law of War.7 The Advisory
Division coordinated with the Vietnamese Directorate of Military
Justice, participated in legal society and educational programs in
Saigon, and monitored the activities of its judge advocate field advis-
ers. These lawyers worked in all four Vietnamese corps areas on legal
issues ranging from desertion control, resource-control, and security
operations to obtaining transportation for Vietnamese judge advocates,





VIETNAM


providing storage for records of trials, and obtaining material for local
prisons.8 Several Vietnamese attorney-advisers and interpreter-trans-
lators served in the office, as well.
MACV's multiservice composition meant that one or more Air
Force and/or Navy judge advocates were always assigned to the MACV
legal staff, acting as liaisons with their respective services in addition
to performing legal tasks. An Army colonel always served as the
MACV staff judge advocate (SJA), however, as Army personnel con-
stituted the largest MACV component. The number of Army attorneys
at MACV headquarters ranged from a low of three in 1965 to a high of
nine in 1967. In early 1967, for example, eight Army attorneys worked
for the staff judge advocate, Col. Edward W. Haughney, along with
three Navy and five Air Force lawyers, one of whom was a colonel who
served as Haughney's deputy staff judge advocate. Supporting these
American attorneys were seven Vietnamese lawyers and some fifty
Vietnamese clerks and translators.39 Chart 2 shows the organization of
the MACV Office of the Staff Judge Advocate in 1967. After that date,
the number of Army lawyers at MACV headquarters steadily declined.
By 1967 the MACV staff judge advocate's office was formulating
legal policy in three major areas: prisoners of war and war crimes, dis-
cipline and criminal law, and claims. Agreed-upon policies were pro-
mulgated in MACV directives, and over the next few years MACV
lawyers wrote and periodically updated more than twenty regulations.
On the subject of prisoners of war and war crimes, MACV continued
to develop legal policy based on the 1949 Geneva Convention for the
Protection of War Victims (GPW) and U.S. policy. As previously noted, /
by August 1965 the South Vietnamese had acceded to the American view
that the ongoing hostilities constituted an armed international conflict,
that North Vietnam was a belligerent, and that the Viet Cong were agents
of the government of North Vietnam. Shortly thereafter, the MACV com-
mander directed that all suspected guerrillas captured by U.S. combat
units be treated initially as POWs and that U.S. units be responsible for
prisoners from the time of capture until their release to Vietnamese
authorities. The decision was made, as well, that prisoners would be
detained by U.S. units only long enough to be interrogated for tactical
intelligence. Thereafter, they were sent to a combined U.S.-Vietnamese
center for classification and further processing by the South Vietnamese.
However, although Vietnamese authorities took custody of all prisoners,
Article 12 of the GPW Convention required that the United States ensure
that Vietnamese treatment of these captives complied with the conven-
tion. MACV lawyers helped to implement a program that ensured that
Vietnamese POW camps complied with international law.






JUDGE ADVOCATES IN COMBAT


CHART 2-ORGANIZATION OF THE OFFICE OF THE STAFF JUDGE
ADVOCATE, MILITARY ASSISTANCE COMMAND, VIETNAM

Commanding General

Deputy Commanding General


Staff Judge Advocate

Deputy Staff Judge Advocate



Administrative
Office



Criminal and Advisory Civil Law and
International Law Division Military Affairs
Division Division



I Corps II Corps IlII Corps IV Corps


Note: Judge advocate advisers in I, II, and IV Corps were assigned to the
MACV corps advisory headquarters in each of these military regions. The judge
advocate adviser for III Corps was a member of the MACV Staff Judge
Advocate's Office in Saigon.

MACV judge advocates assumed the lead on several other prison-
er issues. Most noteworthy was the work done during Colonel
Haughney's tenure as the MACV staff judge advocate from July 1966
to July 1967. Haughney and his staff promulgated the first procedural
framework for classifying combat captives using so-called Article 5 tri-
bunals. Under that article of the GPW Convention, a "competent tri-
bunal" was used to determine if a person was entitled to POW status.
MACV Directive 20-5, Prisoners of War-Determination of Eligibility,
first issued in September 1966 and updated in March 1968, established
and provided authority for a procedural framework for Article 5 tri-
bunals. The directive explained that "the responsibility for determining





VIETNAM


the status of persons captured by U.S. forces rests with the United
States" and that no combat captive or detainee could be transferred to
the Vietnamese until "his status as a prisoner of war or non-prisoner of
war" was determined. Consequently, a tribunal of three or more offi-
cers, including at least one lawyer familiar with the GPW Convention,
would hold a formal hearing to decide each doubtful case.
No Article 5 tribunal was required for persons who "obviously"
were prisoners of war, such as North Vietnamese Army or Viet Cong
regulars captured while fighting on the battlefield. A tribunal was need-
ed only for a detained person whose legal status was in doubt. This was
often the case in Vietnam, however, as rarely did the Viet Cong wear a
recognizable uniform, and only occasionally did the guerrillas carry
their arms openly. Additionally, some combat captives were compelled
to act for the Viet Cong out of fear of harm to themselves or their fam-
ilies. Despite these complications, however, the tribunal could still find
that such a person merited POW status. Or it could determine that an
individual was a "civil defendant" subject to Veitnamese courts or an
innocent civilian who should be released. Detailed guidance on con-
ducting an Article 5 tribunal was contained in Annex A of MACV
Directive 20-5, including the rights of the detainee and counsel, voting
procedures, powers of the tribunal, and posthearing procedures. The
MACV staff judge advocate reviewed all tribunal decisions "to insure
there were no irregularities in the proceedings."40 However, the issue
regarding the treatment of those regarded as political prisoners by these
tribunals remained unaddressed.
In the area of war crimes investigations, MACV attorneys contin-
ued the work started by their predecessors, setting out detailed written
guidance on investigating and reporting war crimes. Significantly, the
command decided, as a matter of policy, that the MACV staff judge
advocate-as opposed to the provost marshal or any subordinate head-
quarters legal officer-would oversee all war crimes matters. Thus, by
mid-1968 an updated MACV Directive 20-4, Inspections and
Investigations, War Crimes, required the reporting of all war crimes
committed by or against U.S.forces. All investigations were to be coor-
dinated with MACV lawyers, with technical assistance furnished by
qualified criminal investigators.
By the time American troop strength peaked in 1969, MACV
Directive 20-4 and other MACV directives contained a significant
body of law that defined, prohibited, and provided for the investigation
of war crimes. During this time, the most grievous of breaches of the
Geneva Conventions were those committed by the enemy. However,
American soldiers also committed war crimes, and from 1965 to 1973





JUDGE ADVOCATES IN COMBAT


Col. Edward J Haughney Col. Irvin M. Kent
MACV Staff Judge Advocate, H Field Force Staff Judge Advocate,
1966-1967 1968-1969

there were 241 cases in which Americans were alleged to have com-
mitted such offenses, of which 160 were found to be unsubstantiated.
Thirty-six war crime incidents, however, resulted in trials by courts-
martial on charges ranging from premeditated murder, rape, and assault
with intent to commit murder or rape to involuntary manslaughter, neg-
ligent homicide, and the mutilation of enemy dead. Sixteen trials
involving thirty men resulted in findings of not guilty or dismissal after
arraignment, while twenty cases involving thirty-one soldiers resulted
in conviction.4'
In the area of discipline and criminal law, MACV developed crim-
inal law policy in two major areas. First, it implemented a coherent pro-
gram for dealing with misconduct committed by MACV members, as
well as by U.S. civilians connected with the war effort. Second, MACV
judge advocates worked with other U.S. government agencies in
Vietnam in suppressing black-marketeering and similar practices.42
A particularly challenging legal policy issue involved criminal
activity by U.S. civilians. Such misconduct fell into three categories:
disorderly conduct, abuse of military privileges, and black-market
activities and currency manipulation. In April 1966, at the request of
the U.S. ambassador, the MACV staff judge advocate prepared a staff
study dealing with the ambassador's authority over U.S. civilians in





VIETNAM


Vietnam. That study concluded that the ambassador could issue police
regulations for all U.S. citizens in Vietnam, provided that the regula-
tions did not conflict with U.S. or Vietnamese laws.43 The study also
concluded that armed forces police could be used to enforce these reg-
ulations and that civilians who violated Vietnamese or American laws
could be punished through administrative measures, such as the with-
drawal of military privileges and the loss of employment.
The increase in serious crimes committed by U.S. civilians, howev-
er, soon made criminal prosecutions appropriate. But who would pros-
ecute? Although some American laws applied extraterritorially, only
two practical possibilities existed: the U.S. military or Vietnamese civil-
ian authorities. While American military authorities could exercise con-
trol over uniformed personnel using the Uniform Code of Military
Justice or MACV directives, their authority over civilians in Vietnam
was tenuous at best. Although Article 2 of the Uniform Code did per-
mit the courts-martial of civilians "accompanying an armed force in the
field," that provision applied only "in time of war," and it was unclear
as to whether the fighting in Vietnam legally constituted a "war."
Additionally, even if such was the case, criminal jurisdiction over civil-
ians extended only to those civilians accompanying U.S. forces "in the
field." Consequently, while civilian employees of government contrac-
tors engaged on military projects, war correspondents with troops on
combat missions, and merchant sailors unloading cargo in U.S. Army
ports might be subject to military criminal jurisdiction, the more than
6,000 U.S. civilian employees of private contractors, independent busi-
nessmen, and tourists in Vietnam were not subject to the Uniform Code
under any circumstances. Furthermore, the Vietnamese were either
unable or unwilling to prosecute Americans.
As a result, the MACV staff judge advocate devised a two-pronged
approach toward civilian misconduct. First, administrative sanctions
were meted out to punish and deter civilian wrongdoing. Withdrawing
the privilege of a civilian to use the post exchange and commissary or
denying him entry onto military bases, along with notification to his
employer that this official action had been taken, generally resulted in
the civilian offender's having his employment terminated.44 Beyond the
loss of employment, however, nothing could be done. Moreover, if an
employee refused to leave Vietnam following the termination of his
employment, there was little American authorities could do other than
ask the Vietnamese to deport him.45 Consequently, the use of adminis-
trative sanctions to punish civilian misconduct was complemented with
a second MACV policy that authorized, when absolutely necessary, the
military prosecution of civilians accompanying U.S. forces. With the





JUDGE ADVOCATES IN COMBAT


approval of Ambassador Henry Cabot Lodge, a few such civilian cases
were prosecuted by U.S. Army, Vietnam, and 1st Logistical Command.
However, this practice was terminated in 1970 when the U.S. Court of
Military Appeals declared that civilians were not subject to military
criminal jurisdiction in Vietnam.46
In an effort to curb American criminal activity in Vietnam, MACV
judge advocates like Col. Lawrence H. Williams worked with the
Irregular Practices Committee. Formed in August 1967 and consisting
of three U.S. embassy representatives and the MACV staff judge advo-
cate, the committee had no operational resources. Rather, it coordinat-
ed the work of those elements of the U.S. mission-such as the Military
Assistance Command-that had resources to suppress black-marke-
teering, currency manipulation, and other illegal activities adversely
affecting the Vietnamese economy.47
Setting uniform criteria for reporting, investigating, processing,
and supervising claims in Vietnam was the last major area in which
MACV judge advocates formulated legal policy. The buildup of troops
and materiel from 1965 to 1969 resulted in an increase in claims for
compensation, and MACV lawyers designed and implemented an
indemnification program to compensate individuals for losses resulting
from U.S. government activity. This effort promoted two important pol-
icy goals. First, it was hoped that fair and timely restitution would show
the Vietnamese that the government was interested in justice and the
welfare of its citizens. Second, an effective claims program was viewed
as supporting the war against the guerrillas.48
Lt. Col. George R. Robinson, MACV claims judge advocate from
November 1964 to November 1965, was chiefly responsible for imple-
menting a fast and fair claims service during the early months of the
U.S. buildup. In early 1965 Robinson headed the revision of MACV
Directive 25-1, Claims, which governed the payment of claims for non-
combat damage. When reissued in May 1965, the new directive was
easier for nonlawyer unit claims officers to understand and included
trilingual (English, Vietnamese, and Chinese) claims forms and a sam-
ple letter of condolence, in both English and Vietnamese, for use in
making a solatia payment. Such a payment or gift reflected institution-
al compassion for a serious personal injury or death incurred, and
MACV headquarters encouraged unit claims officers to utilize this cus-
tom. As a result, a solatia payment, accompanied by the letter found in
MACV Directive 25-1, would routinely be made by a unit's claims offi-
cer in appropriate situations.49
The more difficult policy issue was the paynTent of combat-related
claims. Traditionally, the host country is responsible for such claims,





VIETNAM


but, initially at least, the Republic of Vietnam had no program to com-
pensate its citizens for injuries or damage suffered in combat situations.
For example, in August 1965 a U.S. Air Force B-57 bomber returning
from a combat mission crashed in the city of Nha Trang, killing a num-
ber of civilians and destroying a great deal of property. Viet Cong radio
broadcasts accused the United States of criminal recklessness, and the
incident generated adverse feelings toward Americans. Colonel
Robinson flew immediately to Nha Trang with two other members of the
MACV staff judge advocate's office and began accepting claims from
Vietnamese civilians. While Robinson was processing claims, however,
the Pentagon issued a statement that no compensation for this disaster
could be paid, as damage resulting directly or indirectly from combat
was not permitted under the Foreign Claims Act. Colonels Robinson and
Prugh, however, convinced MACV headquarters that payments to
claimants would gain the goodwill of the people, and Defense
Department contingency funds were subsequently used to pay them.
Similar situations resulted in the Military Assistance Command's
recommendation that the Foreign Claims Act be amended to allow pay-
ment of certain claims indirectly related to the combat activities of U.S.
forces, and Congress made such a change to the law in 1968.
Subsequently, claims such as those Colonel Robinson had handled in
Nha Trang in August 1965 could be honored directly.50
Believing that "a successful counterinsurgency program" required
respect for law and order, the MACV staff judge advocate established
an Advisory Branch in July 1965.51 Using the law and lawyers to fur-
ther the allied mission in Vietnam was a unique approach, and by late
1965 the work done by the Advisory Branch accounted for roughly 40
percent of the MACV staff judge advocate's total workload.52
At the Saigon level, the advisory effort was aimed at the
Directorate of Military Justice and other Vietnamese government agen-
cies and focused on improving such matters as budgeting, desertion
control, tables of organization and equipment, and the administration of
the courts and prison systems. Outside Saigon, the Advisory Division's
field advisers, located in each of the four corps areas, were the eyes and
ears of the MACV staff judge advocate, monitoring military discipline
in South Vietnamese units, the effectiveness of resource control, and
the functioning of South Vietnamese military courts and prisons.53
Inevitably the pervasive administrative corruption in South Vietnam,
coupled with the inherent weakness of Saigon's now troubled civil and
military justice system, greatly limited the effectiveness of such
endeavors, no matter how strongly pressed. But whatever their ultimate
success, the fact that Army lawyers were attempting to address such






JUDGE ADVOCATES IN COMBAT


problems institutionally rather than on an individual basis represented
a major change in itself.

Lawyering at USARV /
The mission of the U.S. Army, Vietnam, staff judge advocate was to
provide legal services for the USARV commander, deputy commander,
and staff, as well as for all major subordinate commanders. He also
"exercised staff supervision over all judge advocate activities in the
U.S. Army, Vietnam.""54 When organized in 1965, the USARV staff
judge advocate office had five military lawyers-one colonel, two
majors, and two captains. It expanded rapidly, however, and between
1966 and 1969 no fewer than ten lawyers occupied the headquarters
office. Initially, the operation was divided into two sections. A Military
Affairs Division, with Legal Assistance, Claims, and International
Affairs Branches, handled all noncriminal legal matters. A Military
Justice Division, with Trial, Inferior Courts, and Review Branches, pro-
vided all criminal law support. This two-part framework had been the
norm for staff judge advocate operations since World War II. However,
when Col. John Jay Douglass became the USARV staff judge advocate
in July 1968, he determined that this traditional way of providing legal
services was no longer suitable and restructured the office into four
divisions: Civil Law, Claims, Military Justice, and Legal Assistance.55
(Charts 3 and 4)
From 1965 to 1969, approximately sixty judge advocates served at
U.S. Army, Vietnam, headquarters. Staff judge advocates during these
years were Cols. Dean R. Dort (1965-66), Hal H. Bookout (1966-67),
William B. Carne (1967-68), John J. Douglass (1968-69), and Wilton
B. Persons, Jr. (1969-70). Colonel Persons later served as the Judge
Advocate General from 1975 to 1979. Other notables were Maj. John
L. Fugh and Capt. Kenneth D. Gray. Fugh later served as the Judge
Advocate General from 1991 to 1993, and Gray as the Assistant Judge
Advocate General from 1993 to 1997.
The USARV staff judge advocate Civil Law Division prepared
opinions and advised on the interpretation and application of laws, reg-
ulations, and directives. Subjects handled by the division included
issues involving the status of USARV military and civilian personnel
(except criminal matters), military security, operations, logistics, and
civil affairs. Lawyers in this division reviewed, for legal sufficiency,
investigations concerning post exchanges, clubs and messes, security
violations, and postal losses; reports of survey; elimination boards; and
collateral investigations involving aircraft accidents. The division also





VIETNAM


CHART 3-ORGANIZATION OF STAFF JUDGE ADVOCATE'S OFFICE
U.S. ARMY, VIETNAM, DECEMBER 1967

Commanding General
Deputy Commanding General


Staff Judge Advocate
Deputy Staff Judge Advocate


SAdministrative
Office



Military Affairs Division Military Justice Division
Legal Assistance Branch Trials Branch (GCMs)
Claims Branch Inferior Courts Branch (SPCMs, SCMs)
International Affairs Branch Review Branch


arranged for the travel of soldiers from Vietnam to the United States
when they were needed as witnesses in legal proceedings, issued legal
opinions on international law, monitored Geneva Convention lectures
to USARV troops, provided counsel for respondents at administrative
elimination boards, and advised on procurement law matters.
The Army exercised single-service responsibility for processing
claims in favor of or against U.S. forces in Vietnam. As MACV had
ceased processing claims by 1966, USARV judge advocates had sole
responsibility for administering a claims program. The number of claims
for damaged or destroyed possessions, equipment, and clothing grew
rapidly as the war intensified. Similarly, the buildup of American forces
in Vietnam brought with it increased claims by Vietnamese nationals for
personal injury and property damage. The impact of heavy military
truck traffic on a people accustomed to the bicycle, small car, and ani-
mal-drawn wagons also led to many claims.6 By the end of 1969, the
number of claims filed and the resulting backlog were significant.
The USARV commander had the authority to create two foreign
claims commissions with a monetary jurisdiction of up to $15,000 each
and twelve single-man commissions with a monetary jurisdiction of up
to $1,000 each. An award in excess of $5,000 was subject to approval






JUDGE ADVOCATES IN COMBAT


CHART 4-ORGANIZATION OF STAFF JUDGE ADVOCATE'S OFFICE
U.S. ARMY, VIETNAM, SEPTEMBER 1968


Administrative
Office


by the appointing authority, and the USARV staff judge advocate was
delegated by the USARV commander to act for him in claims matters."
The line between combat and noncombat claims was often difficult to
draw, but since in almost every case innocent victims required relief,
the Vietnamese and Americans worked together so that compensation
was available, regardless of cause.58
Whatever its importance, claims work continued to be overshad-
owed by the more traditional labor of military justice, specifically pros-
ecuting and defending during military courts-martial. The Military
Justice Act in 1968 required more trained lawyers to serve as defense
counsel and as judges, greatly increasing the burden on trial lawyers,





VIETNAM


while implementing the changes to the code necessitated a new Manual
for Courts-Martial, which was published just in time for the 1
September 1969 effective date of the new act. The gross numbers tell
the story. USARV and its subordinate units conducted roughly 25,000
courts-martial between 1965 and 1969. Of these, 9,922 courts-martial
were tried in 1969 alone, at the peak of the U.S. buildup, of which 377
were general courts, 7,314 were special courts, and 2,231 were sum-
mary courts. Similarly, a large number of Article 15s were administered
between 1965 and 1969-66,702 in 1969 alone. And while there were
few illegal drug prosecutions in 1966, a constantly rising drug use rate
among U.S. troops translated into more and more criminal prosecu-
tions. By 1969 roughly 20 percent of the special courts tried in Vietnam
were for drug-related offenses.59
Perhaps the best known criminal incident occurring in Vietnam
between 1965 and 1969 was the killing of Vietnamese civilians by sol-
diers in My Lai in 1968. On 16 March 1968, members of Company C,
1st Battalion, 20th Infantry, an element of the Americal Division, mur-
dered approximately 350 Vietnamese civilians at the small village of
My Lai in southern I Corps. There was no official knowledge of the
atrocity until April 1969, when a veteran who had heard of the killings
wrote to General Westmoreland, then Army Chief of Staff, describing
his suspicions and requesting an inquiry. The Army's Criminal
Investigation Division determined that 1st Lt. William L. Calley and
twelve men under his command were primarily responsible for the
killings. In September 1969 Calley was charged with the murder of 109
Vietnamese civilians, and in November of that same year a second sol-
dier, S.Sgt. David Mitchell, was charged with multiple counts of mur-
der and assault with intent to commit murder. Eleven other soldiers
were also charged with murder.o6 Of the thirteen men charged, only
Calley was convicted. Proceedings against six of the accused were dis-
missed for insufficient evidence. The others were tried by court-martial
and found not guilty.
Of the twelve Americal Division officers accused of covering up
the atrocity, only Calley's company commander, Capt. Ernest L.
Medina, and his brigade commander, Col. Oran K. Henderson, came
to trial. Both were court-martialed, and both were acquitted. Charges
against Maj. Gen. Samuel W. Koster, the division commander, for
failing to report the killings to MACV headquarters were also dis-
missed. Secretary of the Army Stanley R. Resor, however, punished
Koster administratively by demoting him from major general to his
permanent grade of brigadier general and revoking his Distinguished
Service Medal."






JUDGE ADVOCATES IN COMBAT


On 29 March 1971, Calley was found guilty of premeditated mur-
der by a general court-martial convened at Fort Benning, Georgia, and
was sentenced to life imprisonment. On 20 August 1971, the com-
manding general, Third U.S. Army, took action as the general court-
martial convening authority. He approved the findings of premeditated
murder against Calley, but reduced his sentence to twenty years' con-
finement. In April 1974, after both the Army Court of Military Review
and the U.S. Court of Military Appeals had rejected Calley's appeals
and had affirmed the findings and his sentence, the newly appointed
Secretary of the Army, Howard H. Callaway, reduced his sentence fur-
ther, to ten years. With time served, this made Calley eligible for parole
after six months and, after serving a short time in jail at Fort
Leavenworth, Kansas, he was paroled in November 1974.62
While the war crimes committed at My Lai caused much conster-
nation and soul-searching among Americans generally, the ramifica-
tions of this tragedy on the Army were just as far-reaching. The Peers
Inquiry, so-named because its senior member was Lt. Gen. William R.
Peers, thoroughly investigated the murders. In addition to identifying
thirty individuals involved in the My Lai killings or in the subsequent
cover-up at the Americal Division, the Peers Inquiry also examined the
causes of the incident. For Army lawyers, the most significant Peers
Report finding was the determination that inadequate training in the
Law of War was a contributory cause of the killings. Particularly damn-
ing was the report's finding that Law of War training in Calley's unit
was deficient with regard to the proper treatment of civilians and the
responsibility for reporting war crimes.
Almost immediately, senior members of the Judge Advocate
General's Corps began examining ways to correct this deficiency. In
May 1970 the regulation governing Law of War training was revised
so that soldiers received more thorough instruction in The Hague and
Geneva Conventions. Significantly, the revised regulation also
required that such instruction be presented by judge advocates,
"together with officers with command experience, preferably in com-
bat." This ensured that the training had a firm grounding in real-world
experience, while also demonstrating that Law of War instruction was
a command responsibility.
Of even greater importance, however, was the initiative taken by
retired Col. Waldemar A. Solf. In 1972, while serving as the chief of the
International Affairs Division at the Office of the Judge Advocate
General, Solf recommended that the Army propose to the Defense
Department that it create a DOD-level Law of War Program. This idea
was wholeheartedly endorsed by General Prugh, who was then serving





VIETNAM


as the Judge Advocate General. As a result of Solf's recommendation,
DOD Directive 5100.77, promulgated by the secretary of defense on 5
November 1974, not only established a uniform Law of War Program
for the armed forces but also made the Army Judge Advocate General's
Corps the lead organization in its implementation.63
In establishing the Law of War Program, DOD mandated that not
only must extensive Law of War training be provided to armed forces
personnel, but that judge advocates must be involved in both the devel-
opment and review of operations plans (OPLANS) in order to ensure
that these plans complied with Law of War requirements. This action
was of particular significance as it represented the first institutionally
mandated involvement of military attorneys in the operational planning
process. It was this event that served both as the initial step in modify-
ing the historic mindset of theArmy regarding the "appropriate" role to
be played by- attorneys within the military and as the precursor for the
later development of operational law.

Lawyering in the Field
Each major American combat and support unit had its own legal staff.
Initially, the Army's table of organization and equipment authorized
five lawyers for a division: one lieutenant colonel, two majors, and two
captains. A division deployed in Vietnam, however, was often over-
strength by one or more judge advocates. Additionally, non-judge
advocate attorneys often supplemented a staff judge advocate opera-
tion, particularly after the passage of the Military Justice Act in 1968,
when more lawyers were needed. For example, although the 1st Cavalry
Division was authorized only five attorneys, its staff judge advocate
office had fifteen in 1969, roughly half of whom were not members of
the Judge Advocate General's Corps.64
From 1965 to 1969 more than 350 judge advocates served at units
in the field, outside of MACV and USARV Their work focused almost
exclusively on the traditional legal tasks of the judge advocate, partic-
ularly that of military justice. The experiences of judge advocates in the
101st Airborne Division serve to illustrate. The 1st Brigade, 101st
Airborne Division, and its sole judge advocate, Capt. Frank R. Stone,
arrived in Vietnam in July 1965. The division's remaining elements did
not deploy until December 1967. Although its table of organization and
equipment authorized five judge advocates, the division had seven
lawyers by 1968, headed by Lt. Col. Victor A. DeFiori as the staff judge
advocate and Maj. Steven R. Norman as the deputy staff judge advo-
cate. In accordance with doctrine, DeFiori and most of his lawyers were






JUDGE ADVOCATES IN COMBAT


~y2. --



I- -j
F
DL ~ ~ ii /


Judge Advocate General Maj. Gen. Kenneth J Hodson, center, visits
Vietnam in November 1968. With him are, left to right, Col. Thomas H.
Reese, Staff Judge Advocate, 1st Logistical Command; Col. John J
Douglass, Staff Judge Advocate, US. Army, Vietnam; Lt. Col. Robert
Clark, Chief Personnel, Plans, and Training Office, Office of the Judge
Advocate General; and Col. Paul Tobin, Military Judge, U.S. Army
Trial Judiciary, Vietnam.

located at the division rear headquarters at Bien Hoa, outside of Saigon.
In December 1969, however, the newly arrived staff judge advocate, Lt.
Col. George C. Ryker, moved most of his lawyers to the division main
headquarters at Camp Eagle in I Corps. Ryker's rationale was that he
and his attorneys could provide better legal support at this location, as
Maj. Gen. Melvin Zais, the division commander, and his principal staff
were there. In addition to Ryker, his deputy, and five judge advocates,
five more lawyers, both enlisted men and officers, served with the divi-
sion."5 They worked and lived in wooden huts. During the dry season,
ceiling fans provided some relief from the 100-degree days, but during
monsoon weather, from November to February, almost everyone used
an electric blanket or sheet to keep both dry and warm.66
Military justice practice in the 101 st Airborne was typical of that
for a deployed division, with the majority of the offenses being absence
without leave, disobedience of orders, and assaults. These were prose-





VIETNAM


cuted at general, special, or summary courts, depending on the severi-
ty of the offense. Marijuana use generally was handled under Article 15
of the Uniform Code. Special courts were usually tried by a panel; a
military judge was used only if the case turned on a particular legal
issue. Initially, at least, confinement of soldiers both before and after
trial was a significant problem. Camp Eagle was more than 300 miles
from Long Binh Jail, the confinement facility for all U.S. Army troops
in Vietnam, and it took nearly a week to send two guards on a C-130
aircraft to deliver or return a jailed soldier. Consequently, in December
1969 the division began sending its pretrial and posttrial confinees to
the Marine Corps Brig in Da Nang. Overall, military justice functioned
fairly well, although basic reference materials were often lacking. For
example, the division had only one copy of the newly published Manual
for Courts-Martial. Its owner, the new deputy staff judge advocate,
Maj. Thomas R. Cuthbert, had received it while attending the new
Special Court Judge's Course prior to coming to Vietnam and guarded
the book closely until more copies arrived six months later."
The amendments to the Uniform Code contained in the Military
Justice Act of 1968 became effective on 1 September 1969. Some com-
manders, however, opposed relinquishing control over special courts-
martial, even after lawyers began serving as defense counsel. For exam-
ple, in convening special courts, the division's aviation group and
artillery commanders continued using nonlawyers as prosecutors,
believing that a line officer, rather than a judge advocate, would better
represent the command's interest. These commanders accepted that
felony-level general courts required judge advocates, but did not appre-
ciate the intrusion of lawyers into their special courts, which they saw
as tools of discipline rather than as instruments of justice. However, as
nonlawyer trial counsels often did not do well against legally trained
defense counsels, even the most reluctant special court-martial conven-
ing authorities eventually accepted the presence of judge advocates at
these courts. By mid-1970, when USARV regulations required all juris-
dictions in Vietnam to attempt to secure a military judge in all special
courts-martial, control over special court proceedings passed irrevoca-
bly to military lawyers.68
Legal assistance for division soldiers was provided primarily by
enlisted lawyers. For example, Pfc. Howard R. Andrews, an Alabama
lawyer who had been serving in one of the division's field artillery bat-
talions, joined the legal assistance shop at Camp Eagle. While there,
Andrews applied for and received a commission in the Judge Advocate
General's Corps, and Maj. Gen. John M. Wright, Zais' successor, per-
sonally administered his oath of office on the day Andrews was pro-



































Working at the USARV staff judge advocate s office at Long Binh in
1968, above, was different from practicing law, below, at the 101st
Airborne Division that same year.


-C -





VIETNAM


Defense counsel in the "Green Beret Affair," in which Special Forces
members were accused of murdering a South Vietnamese double agent,
1969. Left to right, Capt. J William Hart, XXIV Corps; Capt. Myron D.
Stutzman, USARV; and Capt. J. Stevens Berry, II Field Force.

moted from private, first class, to captain. After becoming a judge
advocate, Captain Andrews was transferred to the 25th Infantry
Division and was killed in a helicopter crash only a few months later.'
As the number-two lawyer in the division, Major Cuthbert did "a
little bit of everything," but "because he could speak artillery" by
virtue of his prior service as a line officer with the 1st Cavalry
Division, his major responsibility became that of reviewing friendly
fire-investigations. Although such investigations could have been con-
ducted pursuant to Army regulations, Generals Zais and Wright direct-
ed that all friendly fire incidents be investigated under paragraph 32b
of the 1969 Manual for Courts-Martial. This provision required a
commander with immediate jurisdiction over a wrongdoer to "make or
cause to be made, a preliminary inquiry into the charges or the sus-
pected offenses." As a result, an experienced major in the division was
directed to interview witnesses and collect other evidence essential to
determining fault in a particular friendly fire incident. After the inves-
tigation was complete, Major Cuthbert would conduct a review. This
meant examining regulations on fire control and applying the princi-
ples of causation and negligence. After receiving Cuthbert's review





JUDGE ADVOCATES IN COMBAT


and pursuing further discussion with principal staff officers in the
division, usually the adjutant and operations officer, the division com-
mander would take appropriate action. If the investigation led to a
finding of misconduct, the individual at fault usually received an
Article 15 as punishment."7

Lawyering in the Final Years, 1970-1975
Although American offensive operations continued after 1970,
President Richard Nixon had decided to withdraw U.S. forces from
Vietnam. He called his strategy Vietnamization, and its intent was to
f create a strong South Vietnaniese military capable of carrying the bur-
den of fighting. Under this new policy, all American operations were
designed to buy time for the South Vietnamese in order that they might
improve and modernize their forces. Primary targets for U.S. forces
were enemy bases in South Vietnam and across its borders. The denial
of these bases as staging areas for enemy operations seemed the best
way of reducing the long-term threat to South Vietnam.
As a result, while American troops began withdrawing, with most
units leaving in 1970 and 1971, aggressive operations continued. One
of the largest of these began on 1 May 1970, as units of the 1st Cavalry
Division, 25th Infantry Division, and 11th Armored Cavalry Regiment
pushed into Cambodia. The Americans discovered large, well-stocked
storage sites, training camps, and hospitals, all recently occupied. But
most enemy units had retreated beyond the self-imposed limit of the
U.S. advance. Despite mixed success in Cambodia, the South
Vietnamese, with U.S. aviation support, moved across the border into
Laos in February 1971. The aim was to sever the Ho Chi Minh Trail,
the enemy supply line into South Vietnam. The result, however, was
near-disaster for the South Vietnamese, whose operational weakness at
all levels of their army became embarrassingly obvious.7'
From 1970 to 1972 the number of Army lawyers at MACV head-
quarters ranged from three to five, with an Army colonel continuing to
serve as the staff judge advocate. While providing the same types of
legal services as their predecessors, they again became more involved
with advising the Vietnamese. In Saigon, these efforts focused on the
organization and budget of the Directorate of Military Justice. The
Americans also collected, translated, and indexed Vietnamese laws and
decrees, prepared staff studies, and participated as members of various
MACV and joint MACV-Vietnamese committees.72 Everywhere the
policy of Vietnamization lent to their work a seise of urgency that had
been absent since 1965.






VIETNAM


'-~'*~~*i~
N
--..--


Officers of the Staff Judge Advocate's Office, 25th Infantry Division, in
Vietnam, March 1970. Front row, left to right: Maj. Burnett H. Radosh,
Staff Judge Advocate; Capt. James A. Burger; Capt. Howard R. Andrews,
Jr., the only Army lawyer killed in Vietnam; Capt. Thomas P DeBerry;
Capt. Leary G. Skinner; Capt. Robert B. Warren; back row, left to right:
Maj. Richard K Dahlinger, Deputy Staff Judge Advocate; 1st Lt. J
Michael Evans, an Infantry lawyer; Capt. Louis R. Davis; Capt.
Michael J Kemp; CW2 Daniel D. Daniel; Capt. John L. Caden.

In the field, judge advocates' advisory activities varied widely.
Some judge advocates worked with their Vietnamese counterparts on a
daily basis and devoted most of their time to Vietnamese military jus-
tice procedures, the operation of Vietnamese provincial jails and mili-
tary prisons, the Vietnamese claims program, desertion control,
resource control, and security programs. As the judge advocate field
advisers were collocated with senior U.S. advisers, they sometimes also
functioned as command judge advocates. As always, a field adviser's
success depended on many nontraditional factors, ranging from his
own personality and ability to establish rapport with his Vietnamese
colleagues to the support provided him by the local U.S. commander.
More than anything else, however, a field adviser had to be innovative,
identifying problems and discovering practical solutions. Sometimes,
the most pressing problems were nonlegal, such as arranging trans-
portation for Vietnamese legal officers, providing storage for trial





JUDGE ADVOCATES IN COMBAT


records, or obtaining materials and equipment to improve the
Vietnamese military courts and prisons.73 (Map 3)
Although most advisory efforts during this period focused on pro-
grams already in existence, a new challenge was that of working with
the Vietnamese military prison system.' In the American Army, con-
finement facilities are the responsibility of the Military Police Corps;
in the Vietnamese armed forces, prisons were administered by the
Military Justice Corps. Consequently, U.S. Army lawyers at the MACV
staff judge advocate's office in Saigon served as advisers to the military
prisons, a role for which they had little preparation. Most of the work
consisted of periodic visits to the prisons in each corps area, monitor-
ing progress, providing administrative assistance (to obtain building
supplies, for example), and coordinating advisory programs with the
field advisers. As a practical matter, the MACV staff judge advocate
also augmented its advisory staff with a U.S. Military Police Corps
officer, who focused on pretrial confinement facilities under
Vietnamese control.74 But, as elsewhere in the advisory effort, the effec-
tiveness of the efforts of judge advocates depended on the willingness
of the Vietnamese to accept American advice, and on many key issues
the two cultures remained far apart.
Until December 1972, when U.S. Army, Vietnam, merged with the
Military Assistance Command, USARV judge advocates also provided
the same range of legal services-military justice, administrative law,
legal assistance, and claims-offered by their predecessors. The num-
ber of military lawyers at USARV headquarters from 1970 to 1972
ranged from eight to twelve. The changing makeup of the corps was
reflected in the assignment of a husband and wife "JAG team" to
Vietnam, Capt. Nancy W Keough at U.S. Army Area Command and
Capt. James E. Keough at U.S. Army Procurement Agency. Although
not the first, Nancy Keough was one of the few female judge advocates
to serve in Vietnam.75
After 1970 USARV headquarters lawyers handled all courts-mar-
tial conducted for U.S. support troops in Vietnam. With more than
40,000 personnel in this category, they found themselves with the
largest general court-martial jurisdiction in Vietnam. These same attor-
neys also provided guidance and assistance to thirteen subordinate gen-
eral court-martial jurisdictions and approximately a hundred special
court-martial convening authorities. This large number of special court
jurisdictions resulted from Article 23 of the Uniform Code, a provision
that permitted the commanding officer of a detached battalion to con-
vene a special court. In Vietnam, this resulted in some divisions having
as many as fifteen special court-martial convening authorities.






























































GULF OF IVCTZ SOUTH VIETNAM
THAILAND IVCTZ
JUDGE ADVOCATE LOCATIONS
December 1970

Corps Tactical Zone Boundary
0 150 Miles

S0 150 Kilometers

MAP 3





JUDGE ADVOCATES IN COMBAT


With the implementation of the Military Justice Act of 1968 and
the resulting lawyer participation at special courts-martial, the many
special court-martial convening authorities made managing legal activ-
ity difficult. Lawyers, court reporters, and legal clerks who previously
had limited roles in the operation of special courts now discovered that
prosecuting, defending, transcribing, and processing these courts-mar-
tial had increased their work by more than twentyfold in just one year.76
Consequently Colonel Persons, the USARV staff judge advocate, urged
field force and division staff judge advocates to convince their com-
manding generals to consolidate their special courts at the brigade
level. Most did, but some did not. As a result, uniformity in military
justice matters was not always-achieved.77
While thousands of courts-martial were successfully prosecuted in
Vietnam, the military justice system was severely challenged. The
breakdown of order and discipline in the Army, beginning in the late
1960s, created extraordinary institutional turbulence in Vietnam and
elsewhere, raising questions about the Uniform Code and the effective-
ness of the military justice system in a combat environment. Drug
addiction, racial strife, mutinous behavior on the battlefield indicated
that the Army, like the nation, was mired in a crisis of confidence in its
mission; fewer and fewer soldiers, especially young draftees, were will-
ing to risk their lives in an unpopular war.
Army leaders looked to the military justice system as a weapon in
the fight against rampant drug use. In 1970 Army authorities in
Vietnam arrested 11,058 soldiers for illegal drug possession, sale, or
use, of which 1,146 cases involved either opium or heroin. Many of
these arrests resulted in courts-martial.78
Racial tension also played a part in the decline of discipline in
Vietnam. Although blacks and whites were united by common needs
during combat, the story was different in rear areas, where race rela-
tions were often poor. Some black soldiers viewed the military as a
racist institution and saw Vietnam as a white man's war.79 This belief,
combined with their experience of discrimination in the United
States, made some black soldiers suspicious of the mostly white offi-
cer and noncommissioned officer corps. They resented the attempts
of Army leaders to prohibit, as contrary to good order and discipline,
expression of racial pride," such as black bootlace jewelry and neck
chains, "Afro" haircuts, and "dapping," a racial salute involving a
series of mirrored, uniform motions. Sometimes, racial unrest esca-
lated into violence. Although most brawls involved only a few sol-
diers, there were some major confrontations. In*1968 more than 200
black prisoners rioted at Long Binh Jail, and in 1970 a race riot





VIETNAM


exploded at Camp Baxter in Da Nang.80 Years later, one judge advo-
cate observed that the unpopularity of the war, the perception that
black soldiers were disproportionately represented in the combat
arms, and racial dissent in the United States were major contributing
factors in the deterioration of discipline and the complementary chal-
lenges to authority.8'
The breakdown in discipline was also reflected in "combat
refusals," the official term for disobedience of orders to fight.
Although most refusals involved individuals, on at least two occasions
company-size units resisted lawful orders. In September 1969 a com-
pany of the 196th Light Infantry Brigade refused to recover bodies
from a downed helicopter, and in April 1970 CBS Evening News
reported the reluctance of a company in the 1st Cavalry Division to
advance down a dangerous trail.82
The most serious mutinous activity, however, was not combat
refusal, but the killing or attempted killing of officers and noncommis-
sioned officers. Called fragging, slang derived from the fragmentary
grenade, it was carried out by soldiers against unpopular or overly
aggressive leaders. Because most fraggings, or "assaults with explo-
sives" as they were officially called, resulted in injury rather than death,
the Army concluded that "in the majority of cases the intent is to intim-
idate or to scare." Nonetheless, with 209 reported fraggings in Vietnam
in 1970, some resulting in death, and with similar attacks continuing
over the next two years, Army leaders again looked to the military jus-
tice system for a solution.83 At the same time, some commentators
began to voice concerns about the adequacy of the military justice sys-
tem. They blamed it, at least in part, for failing to maintain good order
and discipline during combat operations.84
Claims remained a significant part of USARV legal operations.
Since those payable to Americans under the Military Personnel Claims
Act were handled by unit claims officers, almost all work done by
lawyers at the USARV Foreign Claims Division involved claims filed
by Vietnamese or other foreign nationals. However, as U.S. law still
prevented paying compensation for combat-related damage, and as the
Vietnamese government was responsible for paying all claims arising
from the combat activities of American forces, USARV lawyers theo-
retically adjudicated only noncombat claims. In practice, however,
Vietnamese claimants always found it easier to approach American
officials on such matters and construed their particular cases accord-
ingly. Thus, with 70 to 90 percent of the total processing time in a for-
eign claim spent in the investigation stage, USARV claims officials
often found themselves devoting considerable time to claims that even-





JUDGE ADVOCATES IN COMBAT


tually were found to be the result of combat.85 The time spent on such
claims and the inability to pay them posed a constant problem.
By January 1970 the USARV Foreign Claims Division operated two
three-man foreign claims commissions with an approval authority for
claims up to $15,000. Located in downtown Saigon, one commission
processed only those claims arising out of an April 1969 explosion at the
Da Nang ammunition supply point. Extensive damage to civilian prop-
erty from the explosion resulted in some 9,000 claims being filed by
November 1971. Some were fraudulent and others were untimely, but all
had to be processed.86 The other three-person commission processed the
routine workload received from the field at a rate of about 225 claims
per month; all cases that could not be settled by one of twelve one-man
commissions in an amount of $1,000 or less were forwarded to this com-
mission. The unusual case that exceeded the jurisdiction of this three-
man commission would be forwarded to the Pentagon for a decision by
the assistant secretary of the Army (financial management).87
During these final years of lawyering in Vietnam, USARV claims
judge advocates looked for solutions to three major questions. First,
should compensation be paid for combat-related damage or loss based
on the reckless and wanton conduct of U.S. forces? Second, who should
have-claims responsibility upon the complete withdrawal of U.S. forces
from Vietnam? Finally, what should be done about increasingly violent
Vietnamese-American confrontations over claims for damage or loss?
Under U.S. law, appropriated monies could not be used to compen-
sate for combat-related damage or loss of life. Due to the nature of the
war in Vietnam, however, this prohibition resulted in inequities. The
battlefield was anywhere and everywhere, with no identifiable front
lines. Innocent civilians could not avoid the war or its suffering.
Recognizing that compensation for losses relating to the combat activ-
ities of U.S. forces could not be paid under the Foreign Claims Act, but
believing that this position did not best serve U.S. interests, MACV
determined that its assistance-in-kind funds could be used to pay for
some combat-related damage. As a result, the USARV Foreign Claims
Division processed Vietnamese- claims springing indirectly from com-
bat, provided the loss or damage was caused by the reckless or wanton
conduct of U.S. forces. While injuries resulting from a firefight
between U.S. troops and guerrilla forces were not compensable, loss of
life or damage to property caused by a soldier on patrol who indis-
criminately fired his weapon into a village was. Paying these claims
'demonstrated that the Americans took responsibility for their behavior,
showed the Vietnamese people that the law could cdnfer a benefit, and,
it was hoped, fostered popular respect for the law in Vietnam.88
























'~ .i


-\--*-


Lt. Col. James D. Clause, far left, MACV SJA Advisory Division, and Maj.
Leonard G. Crowley, far right, USARV SJA Foreign Claims Division,
receive the Vietnamese Justice Medal (Second Class) from Minister of
Justice Le Van Thu, second from left, 1970. The decoration was Vietnam's
highest judicial honor for foreigners. Bottom, Capt. Ned E. Felder, the
only judge advocate to serve two consecutive twelve-month tours in
Vietnam, receives the Bronze Star Medal from Brig. Gen. John S. Lekson,
Chief of Staff II Field Force, Vietnam, February 1968.





JUDGE ADVOCATES IN COMBAT


Who should have claims responsibility upon complete withdrawal
of U.S. forces from Vietnam? As early as October 1971, Maj. Ralph G.
Miranda, chief of the Foreign Claims Division, had recommended to
the USARV staff judge advocate that a plan be formulated for process-
ing foreign claims submitted after U.S. forces departed Vietnam.
Miranda anticipated that Vietnamese nationals would continue filing
claims then handled by the USARV Foreign Claims Division. He also
believed that when departing U.S. forces returned leased real properties
prior to the expiration of the leases, Vietnamese landlords would file
substantial claims against the United States. Anticipated as well was the
fact that, as U.S. troop strength decreased and various support agencies
terminated operations, the need for local national employees would
diminish and claims for termination pay would result.89 Finally, claims
would also arise out of contracts with Vietnamese businesses for goods
or services. After coordination with the Military Assistance Command
and the Air Force and Navy, it was decided that the Army would con-
tinue to process foreign claims at U.S. Army, Pacific, the theater-level
component headquarters in Hawaii. Subsequently, foreign claims were
accepted at the Defense Attach6 Office in Saigon and by the U.S. con-
sular staff throughout South Vietnam and forwarded to Army head-
quarters in Hawaii.90
The third claims issue of personal interest to claims judge advo-
cates was that of the actions that could be taken "to cool off potential-
ly explosive situations" involving claims for loss or damage. After
1970, as the Vietnamese saw American units departing and as the back-
log of claims cases increased, a general officer reported that "they visu-
alize that the only means of getting a prompt and adequate settlement
is via the confrontation approach."91 On one occasion, several hundred
Vietnamese claimants blocked the entrance to a U.S. military com-
pound in the XXIV Corps area, refusing to leave until their claims were
paid. The disturbance was quelled only after the chief of the USARV
Foreign Claims Division flew from Saigon to Da Nang, met personally
with the village and hamlet chiefs, and assured them that "we would do
all within our power to settle the problem as soon as possible."92
Matters were often not that simple. In May 1970 a 2 1/2-ton Marine
Corps truck struck and killed a young Vietnamese boy. Almost at once,
a crowd of more than a hundred Vietnamese surrounded the truck con-
taining the marines. The local commander requested that Capt. Donald
A. Deline, the new Da Nang claims officer, go to the accident scene at
once. Arriving with some claims forms in his old International
Harvester truck, Deline discovered that concettina wire had been
placed around the Marine Corps truck. The dead child was lying on an





VIETNAM


altar in front of the truck, and the boy's mother and others were praying
loudly. South Vietnamese soldiers were also on the scene, and they,
together with the local mayor, informed the captain that they wanted
money. Late that evening, at 11 P.M., a Marine Corps officer appeared
on the scene. After making a small solatia payment to the victim's fam-
ily, he and Deline started to leave the house in which the discussions
had taken place. Although armed with a .45-caliber pistol, Captain
Deline was held down in his chair, and the Marine officer was escort-
ed out. For the next two to three very tense hours, Deline and the
marines in the truck remained captive.
Early the next day, at 2 A.M., a Marine Corps colonel arrived by
jeep with $3,000 to $5,000 in Vietnamese piasters of his own money.
The crowd permitted the colonel and the marines in the truck to depart,
leaving Deline at the scene. The Marine Corps colonel returned his men
to their barracks and sent two military policemen for Deline. At the
time, the captain was undecided as to whether he and the police should
use force and "push our way out or not." Finally, they did force their
way out of the house, and although the Vietnamese were yelling angri-
ly and striking the three Americans, Deline and the two military police-
men managed to escape.93 Such was the initiation of the young JAG
officer to his tour in Vietnam.
During this period, one of the most celebrated investigations
reviewed by USARV lawyers did not involve a claim or a war crime.
Rather, it concerned the attack by enemy sappers on Fire Support Base
MARY ANN, an Americal Division outpost in I Corps. In March 1971 a
group of fifty to sixty well-prepared enemy penetrated MARY ANN's
perimeter and, tossing grenades and satchel charges into the tactical
operations center, killed or wounded virtually all of the officers. An
investigation concluded that the failure of the officers in charge to post
guards or follow other proper defensive procedures was grossly negli-
gent and contributed directly to the heavy American casualties-thirty
dead and eighty-two wounded.94 Maj. William K. Suter, newly assigned
to the USARV staff judge advocate office, was tasked with reviewing
the MARY ANN investigation, fixing responsibility for the incident, and
recommending an appropriate course of action. After digesting the
classified report's eleven volumes, Suter briefed Lt. Gen. William J.
McCaffrey, the USARV deputy commander. He recommended no
courts-martial, but urged reprimands, administrative elimination
actions, and adverse efficiency reports. General McCaffrey approved
all of these recommendations.95
Until the last combat units departed Vietnam in 1972, judge advo-
cates lawyered actively with these units. The experiences of military





JUDGE ADVOCATES IN COMBAT


attorneys at the 1 st Cavalry Division illustrate the lawyering in the final
years of U.S. presence in Vietnam. By 1970 fifteen lawyers were pro-
viding legal services in the division. One of the attorneys trying courts-
martial was Capt. Royce C. Lamberth. Lamberth had served briefly as
a judge advocate at XVIII Airborne Corps at Fort Bragg, North
Carolina, before arriving at Phuoc Vinh in November 1969, where he
immediately assumed a heavy courts-martial caseload, serving as both
prosecutor and defense counsel. While the general courts-martial were
tried at division headquarters, the inferior courts-martial were often
tried at the brigade bases, as the commanders did not want witnesses
"leaving the field." Consequently, Captain Lamberth, accompanied by
the military judge and his opposing counsel, routinely flew in a small
unarmed observation helicopter to these bases for the trials.
Proceedings were typically held in a tent.96
During his year in Vietnam, Captain Lamberth tried more than 200
cases. The most memorable involved defending a team of six Rangers
accused of mutilating the bodies of enemy soldiers. The Rangers had
ambushed some North Vietnamese soldiers bicycling down the "Jolley
Trail," a major infiltration route into South Vietnam. One or more of the
Rangers later boasted over a few beers that, after killing the enemy sol-
diers, they had "cut open the bodies from throat to groin and stuffed
them with rice" from the 100-pound burlap bags strapped to the enemy
bicycles. This "calling card" was intended to strike fear into any enemy
who later happened upon the dead men. The Rangers, however, soon
regretted their braggadocio as their alleged mutilation of the dead was
reported by others as a war crime.
A lieutenant colonel with the MACV inspector general's office
arrived at the 1st Cavalry Division to interview the six Rangers. Each
man told the same story: they had ambushed and killed the enemy, but
no mutilation of the dead had occurred; that had just been bragging.
After reducing their statements to writing, the investigator asked the six
Rangers to submit to a polygraph. They balked. All asked for a lawyer,
and Captain Lamberth was assigned to represent all six men. With his
clients facing courts-martial, Lamberth filed a motion requesting that
Maj. Gen. Elvy B. Roberts, the division commander, "produce" the
bodies of the dead North Vietnamese. He argued that only if the bodies
were produced would the six Americans "be able to establish their inno-
cence." After a late-night staff meeting that included the chief of staff
and the G-3 (operations), the commanding general decided that it
would be consistent with planned operations in the area to send an aer-
ial rifle platoon to search for the bodies of the North Vietnamese. Lt.
Col. Ronald M. Holdaway insisted that the defense counsel go on the





VIETNAM


mission to ensure that there would be no later claim of a cover-up. As
a result, Lamberth learned he would be departing by helicopter at first
light.
Air Force jets and Cobra helicopter gunships "prepped" the inser-
tion site for the Huey utility helicopter, or "Slick," carrying Lamberth
and the six Rangers. Then, about 100 feet above the bomb crater where
the insertion was to occur, the engine stalled and the helicopter crashed.
Believing that they had been shot down, Lamberth, the only officer
aboard other than the warrant officer pilot, and the Rangers "fired like
hell" from their perimeter into the jungle. When no fire was returned,
the men realized that mechanical failure had caused the crash. They
radioed for a Sky Crane helicopter to recover the crashed aircraft and
for a new Slick to retrieve them. Meanwhile, Lamberth and the Rangers
proceeded on foot down the Jolley Trail, eventually finding the bicy-
cles, burlap bags containing rice, and much blood. One soldier came
across an enemy bunker, which was blown up with hand grenades; oth-
ers located a bridge along the trail, which was also destroyed. But no
bodies were found. Lamberth and his clients returned without further
incident, and in the absence of corroborative evidence no courts-mar-
tial charges were preferred.

Last Army Lawyers, 1972-1975
The continued withdrawal of U.S. forces meant decreasing mobility,
firepower, intelligence, and air support. When the North Vietnamese
Army launched its Easter offensive in March 1972, total U.S. military
strength in theater was about 95,000, of which only 6,000 were combat
troops. Responsibility for countering the enemy invasion thus fell
almost completely on the South Vietnamese Army, strongly supported
by U.S. advisers and American airpower. In the end Hanoi's conven-
tional troops were thrown back, but only after heavy losses had been
suffered by both sides. Subsequently, the United States, North and
South Vietnam, and the Viet Cong signed an armistice that went into
effect early the following year, promising a cease-fire and national rec-
onciliation. Almost immediately, the U.S. military command stood
down, all remaining American troops in Vietnam departed, and direct
American military involvement there came to an end. U.S. advisers,
who had provided the backbone of the South Vietnamese command
structure, were also withdrawn, never to return.
For Saigon, the U.S. withdrawal proved calamitous. Far from end-
ing the fighting, the armistice left South Vietnam competing with the
enemy for territory. Soon the inherent weakness of the Saigon regime





JUDGE ADVOCATES IN COMBAT


and its military forces became increasingly apparent. At the same time
a war-weary U.S. Congress steadily reduced American military aid,
forcing Saigon to reduce its tempo of operations in order to husband its
diminishing resources. The end was not long in coming. In January
1975 North Vietnamese military forces seized Phuoc Long Province in
III Corps and, when the United States failed to respond, continued their
offensive. When President Nguyen Van Thieu withdrew his forces to
defend Saigon to the south, the action provoked panic among both
troops and civilians, making a coordinated defense impossible. Some
South Vietnamese units fought well, but most disintegrated. Saigon fell
to the enemy on 30 April 1975, and the remaining American techni-
cians, embassy personnel, and others were hastily evacuated.
The agreement that had ended American participation in the war,
known popularly as the Paris Peace Accords, had been signed on 27
January 1973. Initially, it provided for a Four-Party Joint Military
Commission for sixty days to oversee a mutual troop withdrawal, serve
as a forum for communication among the four parties, and assist in the
implementation and verification of the agreement. Additionally, the
commission was to arrange the return of prisoners of war and gather
information about those missing in action.97 The four parties quickly
agreed to create the main commission in Saigon, supported by seven
regional commissions throughout the country. Military representatives
from each of the four parties were appointed to each of these commis-
sions. Having determined that Army judge advocates should participate
in the work of the Joint Military Commission, Col. Joseph Tenhet, the
USARV/MACV staff judge advocate, selected-Maj. Paul P. Dommer,
the incumbent chief of the Advisory Division, as the legal adviser to the
U.S. delegation to the central Four-Party Joint Military Commission in
Saigon.98 Junior judge advocates from Tenhet's office were detailed as
legal advisers to the regional commissions."
Capt. Vahan Moushegian, Jr., was one of those selected to serve as
a regional Joint Military Commission legal adviser. Assigned to the
USARV staff judge advocate office, Moushegian joined the Joint
Military Commission in Region 5, located in Bien Hoa, a few kilome-
ters north of Saigon. Col. Walter F. Ulmer, the chief of the U.S. delega-
tion, informed Captain Moushegian that he was to be "the delegation's
expert on the Paris Peace Accords," and, in the formal meetings of the
Region 5 Commission that followed, Moushegian advised and assisted
both Ulmer and the deputy chief of the U.S. delegation.
Because Colonel Ulmer's Viet Cong counterpart "never came out of
the jungle" to represent the Provisional Revolutionary Government, the
commission's four deputy chiefs of delegation soon were meeting a few





VIETNAM


hours every other day around a square table covered with green felt. In
discussing the intent and implementation of the Paris Peace Accords, the
participants wrangled constantly over how the provisions should be
interpreted. Little was achieved at the formal sessions. The topics of the
meetings ranged from the significant (repatriation of American and
South Vietnamese prisoners of war), to the ordinary (the ability of the
North Vietnamese and Viet Cong delegations to travel freely throughout
Region 5), to the absurd (whether the fans at the conference table ade-
quately cooled the attendees). While the Provisional Revolutionary
Government and the North Vietnamese generally supported each other,
the Americans and the South Vietnamese were sometimes at odds, mak-
ing it difficult to present a united front or to pursue a common strategy
in the talks. Additionally, as the accords required any decision reached
by the Joint Military Commission to be unanimous, one party's objection
blocked any progress.
Captain Moushegian's role evolved over time. He assumed, in addi-
tion to his responsibilities as the legal adviser, the duties of principal
liaison officer for the U.S. delegation. Thus, when the deputy chiefs of
delegation stopped meeting formally due to a lack of measurable
progress, the liaison officers were instructed to meet regularly to ensure
that dialogue continued on the implementation of the accords. That said,
"almost nothing was accomplished by the Joint Military Commission,"
in Moushegian's view, because "there were only eight weeks [and] the
Viet Cong and North Vietnamese would agree to nothing, knowing that
the United States was leaving Vietnam."
On 27 March 1973, the U.S. military headquarters stood down and
the last American combat troops left Vietnam. The Four-Party Joint
Military Commission also ceased to function, and Major Dommer,
Captain Moushegian, and the other judge advocates working with it left
for the United States. A new organization, the Four-Party Joint Military
Team, now replaced the Joint Military Commission. From the perspec-
tive of the U.S. delegation, this new body had two main functions: locat-
ing and recovering the remains of Americans who had died in captivity
and discovering the whereabouts of Americans still missing in action.
A lone Army lawyer now served in Vietnam, assigned as the legal
adviser to the U.S. Delegation to the Joint Military Team. The first
adviser was Maj. Charles R. Murray, who served with the team from
the end of March until the middle of July. His replacement, Capt.
Jerome W. Scanlon, Jr., arrived in July 1973. Met by Murray and a dri-
ver in a government sedan at Tan Son Nhut airport, they unexpectedly
found themselves under fire en route to their quarters. Traveling in
front of their vehicle had been a Vietnamese Army truck filled with





JUDGE ADVOCATES IN COMBAT


Capt. Jerome W Scanlon, Jr., legal adviser to the Four-Party Joint
Military Team, examines documents provided by the North Vietnamese at a
6 March 1974 meeting in Hanoi. Although a judge advocate, Scanlon wore
general staff insignia at the direction of the chief of the US. delegation.

prisoners. When one of them jumped from the truck and ran past the
sedan carrying Scanlon and Murray, a Vietnamese Army guard, with no
hesitation, opened fire on the escapee. His bullets missed the prisoner,
but struck the sedan. Fortunately, no one was hurt, and the prisoner was
recaptured. Yet, as this was his first day in country, Captain Scanlon
was sure "it would be a long year."'00
Arriving without further incident at the Joint Military Team's
offices, Scanlon assumed his duties at the Negotiation Division, advis-
ing Col. William W. Tombaugh, the chief of the U.S. delegation, on the
rights and obligations of all parties under the Paris Accords. Gaining
information concerning U.S. personnel who had died while prisoners or
who remained missing in action required the compilation of files on
missing Americans and the excavation of areas under North
Vietnamese and Viet Cong control. The captain participated in all meet-
ings of the Joint Military Team and reviewed files on missing persons
prior to the release of these papers to the North Vietnamese or Viet
Cong. The United States possessed information, obtained from prison-
ers of war already released, that particular individuals had been seen
alive in North Vietnamese or Viet Cong custody. When the latter denied





VIETNAM


any knowledge of the missing person, the U.S. delegation would release
the relevant information it held. Scanlon's task was to examine each
file, ensuring not only that the information in it was accurate, but that
any information disclosed was properly declassified. During his year in
South Vietnam he journeyed by C-130 aircraft to Hanoi more than ten
times. Captain Scanlon finally departed Vietnam in July 1974. His
replacement, Maj. J. Lewis Rose, continued providing the same legal
services. When Saigon fell on 30 April 1975, Rose was performing
temporary duty in Hong Kong. He was the last judge advocate to serve
in Vietnam.

Conclusion
How did the sixteen years of service by judge advocates in Vietnam affect
the manner in which the Judge Advocate General's Corps would
approach its delivery of legal services in the future? Institutionally, the
Corps failed to view its years in Vietnam as a basis for engaging in any
substantial modification of the way in which it had traditionally practiced
military law. With the exception of an extensive effort to incorporate
Vietnam lessons learned into both the Law of War training materials pre-
pared and provided by the Judge Advocate General's School, little was
done to capture the unique aspects of the Corps' Vietnam experience.
Looking back, however, it is clear that a metamorphosis in the role
of the Army lawyer was under way. The efforts of individual judge
advocates in Vietnam to do more than simply provide legal services
identical to those offered in a peacetime garrison environment often
contributed to mission accomplishment. Army lawyers proved to be
principal players in dealing with such issues as the investigation and
documentation of war crimes, the classification of detainees and treat-
ment of prisoners of war, Law of War instruction, and the provision of
advice to host nation authorities on a wide range of subjects.
Yet, while these initiatives were significant, it was the development
of the 1974 DOD Law of War Program-a direct result of the Army's
efforts to respond to the Peers Report on My Lai-that would most
directly affect the future role of judge advocates in the Army. Whether
these judge advocates realized it or not at the time-and most did not-
successful implementation of the Law of War Program would require
that they begin to communicate directly with commanders and their
staff principals throughout the operational planning process, identify-
ing and resolving issues of both a legal and a nonlegal nature.
Not until 1983, however, following the deployment of judge advo-
cates to Grenada in Operation URGENT FURY, would the Judge Advocate





JUDGE ADVOCATES IN COMBAT


General's Corps fully appreciate the need to implement and institution-
alize a process by which Army lawyers would be trained in and practice
a newly conceived and formulated body of law directly applicable to
the conduct of military operations. Although "operational law" was
then a concept beginning to take shape in the minds of some judge
advocates, it was not yet a reality. However, the Vietnam experience had
laid the psychological and cultural foundation in the U.S. military for
the transformation that would soon take place.





VIETNAM


Notes


Interv, author with Col Paul J. Durbin, 1 Jul 96, Historians files, Office of the
Judge Advocate General (OTJAG), Department of the Army, Washington, D.C.
2 Memorandum no. 10, Missions and Functions of MAAG Advisers, HQ, MAAG,
27 Jan 61, box 25, Records of the MAAG Adjutant General Division, Record Group
(RG) 334, National Archives and Records Administration (NARA), College Park,
Md.
3 Vincent H. Demma, "The U.S. Army in Vietnam," in American Military History,
rev. ed. (Washington, D.C.: Government Printing Office, 1989), p. 623; Ronald H.
Spector, Advice and Support: The Early Years, 1941-1960, U.S. Army in Vietnam
(Washington, D.C.: Government Printing Office, 1983), p. 291.
4 Demma, "U.S. Army in Vietnam," p. 631.
5 MAAG Vietnam Judge Advocate Responsibilities, Appendix I to Annex L (Legal),
MAAG Vietnam OPLAN 61-61, 10 Feb 61, box 25, Records of the MAAG Adjutant
General Division, RG 334, NARA.
6 Interv, author with Durbin, 1 Jul 96.
7 The Pentalateral Agreement also exempted all goods imported into Vietnam for
use by the advisory group from Vietnamese customs and taxes. This special treatment
reflected a belief that there would be only a small U.S. presence in Vietnam after 1950.
As the American buildup began in the early 1960s, however, the United States and the
Republic of Vietnam chose not to negotiate a Status of Forces Agreement like those
used in Japan, Korea, and the Philippines. Consequently, all U.S. forces remained
immune from Vietnamese criminal and civil law until the end of the war in 1975.
8 Interv, author with Durbin, 1 Jul 96.
9 Spector, The Early Years, p. 370.
10 Interv, author with Durbin, 1 Jul 96.
MAAG Vietnam OPLAN 61-61, Annex L (Legal).
12 Interv, author with Durbin, 1 Jul 96. For an in-depth discussion of the Vietnamese
legal system and its French structure, see George S. Prugh, Law at War: Vietnam
1964-1973, Vietnam Studies (Washington, D.C.: Government Printing Office, 1974),
pp. 15-39.
3 Interv, author with Col George C. Eblen, 23 Aug 96, Historians files, OTJAG.
14 Interv, author with Col George C. Eblen, 9 Sep 96, Historians files, OTJAG.
Ibid.
6 Interv, author with Eblen, 23 Aug 96; Prugh, Law at War, p. 98.
7 Interv, author with Lt Col William G. Myers, 15 Jul 96, Historians files, OTJAG.
Ibid.; interv, author with Arthur H. Taylor, 2 Aug 96, Historians files, OTJAG.
Intervs, author with Arthur H. Taylor, 2 Aug 96 and 21 Nov 96, Historians files,
OTJAG.
20 Interv, author with Alfred A. McNamee, 31 Jul 96, Historians files, OTJAG.
21 Ltr, Prugh to Col Thomas H. Swan, 26 Apr 65, Historians files, OTJAG.
22 Jeffrey J. Clarke, Advice and Support: The Final Years, 1965-1973, U.S. Army in
Vietnam (Washington, D.C.: Government Printing Office, 1987), p. 119.
23 Prugh, Law at War, p. 63.
24 Clarke, The Final Years, p. 120.
25 Prugh, Law at War, p. 63; interv, author with Maj Gen George S. Prugh, 31 Jul
96, Historians files, OTJAG.
26 Prugh, Law at War, pp. 61-67; Clarke, The Final Years, p. 170.





JUDGE ADVOCATES IN COMBAT


27 MACV Directive 20-4, Inspections and Investigations of War Crimes, 20 Apr 65,
Historians files, OTJAG.
28 Prugh, Law at War, pp. 72-73.
2" Memo, HQ, MACV, 21 Jan 65, sub: Resources Control-Arrest, Search, and
Seizure Laws in the Republic of Vietnam, Incl 2, p. 1, Historians files, OTJAG.
30 Prugh, Law at War, p. 42; interv, author with Prugh, 31 Jul 96.
3 Demma, "U.S. Army in Vietnam," pp. 638-39.
32 George S. Eckhardt, Command and Control: 1950-1969, Vietnam Studies
(Washington, D.C.: Government Printing Office, 1974), p. 54.
33 Demma, "U.S. Army in Vietnam," p. 642.
34 Prugh, Law at War, p. 88.
35 Demma, "U.S. Army in Vietnam," p.649. For a perspective on small unit opera-
tions in Vietnam, see James McDonough, Platoon Leader (Novato, Calif.: Presidio
Press, 1985), and David Donovan, Once a Warrior King (New York: McGraw-Hill,
1985). McDonough served as an infantry lieutenant with the 173d Airborne Brigade in
1970; Donovan served with a province advisory team in the Mekong Delta in 1969.
36 Prugh, Law at War, p. 100.
7 Ibid., pp. 10, 12.
38 Ibid., p. 53.
39 Interv, author with Col Edward W. Haughney, 27 Sep 96, Historians files, OTJAG.
40 MACV Directive 20-5, Prisoners of War-Determination of Eligibility, 21 Sep
66, Historians files, OTJAG.
41 Prugh, Law at War, p. 74; Guenter Lewy, America in Vietnam (New York: Oxford
University Press, 1978), pp. 325, 348; Rpt, Clerk of C6urt, U.S. Army Judiciary,
Convictions by General and Special (BCD) Courts-Martial of Offenses Against
Vietnamese, 1965-1973, n.d., Historians files, OTJAG; United States v. McGee, CM
422412 (1969), (court admonished soldier after convicting him of involuntary
manslaughter); United States v. Hodges, CM 420341 (1969), (sergeant cut off heads of
dead enemy soldiers and posed for photographs with the corpses). See also United
States v. Lund, United States v. Francis, CM 420181 (1969), (rape of Vietnamese
female by two Americal Division soldiers); United States v; Woods, CM 416803 (1966),
(soldier killed detainee allegedly on instructions of company commander); United
States v. Williams, CM 419872 (1968), (soldier convicted of conduct prejudicial to
good order and discipline for cutting off ears and index fingers of Vietnamese corpse);
United States v. Goldman, CM 420332, 43 CMR 77, ACMR (1970), (company com-
mander convicted for failing to report noncombat death of detainee and dereliction of
duty in failing to protect Vietnamese female in custody of his unit); United States v.
Duffy, CM 424795, 47 CMR 658 (ACMR 1973), (lieutenant convicted of involuntary
manslaughter for causing Vietnamese to be taken to a woodline and shot with a rifle).
For a more thorough discussion of American war crimes in Vietnam, see Lewy,
America in Vietnam, pp. 323-441.
42 Prugh, Law at War, p. 90.
43 Ibid., pp. 108-09.
4 Trip Report on Vietnam, Eugene T. Herbert, Department of State, 30 Dec 66, sub:
Status of Civilian Contractors in Vietnam, box 1, HQ MACV Staff Judge Advocate,
General Records, RG 472, NARA.
45 Memo, Staff Judge Advocate, Ist Logistical Command, for Commanding
General, USA Support Command, 13 Mar 67, sub: Court-martial jurisdiction over
civilians, box 1, USARV Staff Judge Advocate Section, Administrative Office, RG 472,
NARA.





VIETNAM


46 Interv, author with Haughney, 27 Sep 96; Gary D. Solis, Marines and Military
Law in Vietnam: Trial by Fire (Washington, D.C.: Government Printing Office, 1989),
pp. 99-100.
47 Prugh, Law at War, p. 93.
48 Staff Study, The Role of Civil Law in Counterinsurgency, HQ, MACV, May 65,
Historians files, OTJAG.
49 MACV Directive 25-1, Claims, 14 May 65, Historians files, OTJAG.
5o Interv, author with Prugh, 25 Sep 96; Prugh, Law at War, p. 83; U.S. Public Law
90-521, sec. 3 (1968), amending Title 10, United States Code, sec. 2734.
51 Prugh, Law at War, pp. 41, 49.
52 Staff Study, Transfer of MACV Staff Elements to USARV, HQ MACV 28 Nov
65, box 1, USARV Staff Judge Advocate Section, Administrative Office, RG 472,
NARA.
Prugh, Law at War, p. 50.
54 Memo, USARV Staff Judge Advocate for USARV Assistant Chief of Staff,
Comptroller, 12 Sep 68, sub: Mission of USARV SJA, box 1, USARV Staff Judge
Advocate Section, Administrative Office, RG 472, NARA.
Interv, author with Col John Jay Douglass, 19 Nov 96, Historians files, OTJAG.
56 George S. Prugh, "Law Practice in the Vietnam War," Federal Bar Journal 27
(1967): 58.
57 Prugh, Law at War, p. 83.
8 Ibid., p. 62.
9 Dennis R. Hunt, "Viet Nam Hustings," Judge Advocate Journal, Bull. no. 44
(July1972): 23.
"o William M. Hammond, Public Affairs: The Military and the Media, 1968-1973,
U.S. Army in Vietnam (Washington, D.C.: Government Printing Office, 1996), pp.
220-24.
61 Ibid., p. 252.
62 Ibid., pp. 258-59; Lewy, America in Vietnam, pp. 356-58; United States v. Calley,
46 CMR 1131 (ACMR 1973); inter, author with Col William G. Eckhardt, 8 Dec 98,
Historians files, OTJAG. See also Calley v. Callaway, 382 Federal Supplement (F.
Suppl.) 650 (1974).
63 Report of the Department of the Army Review of the Preliminary Investigations
into the My Lai Incident (Peers Inquiry), 14 Mar 70, 1: 10-26; Hammond, Military and
the Media, 1968-1973, pp. 244-45; Army Regulation (AR) 35-216, Training: The
Geneva Conventions of 1949 and Hague Convention No. IV of 1907, 28 May 70; DOD
Directive 5100.77, DOD Program for Implementation of the Law of War, 5 Nov 74.
64 Interv, author with Lt Col Ronald M. Holdaway, 24 Jul 96.
65 Judge Advocate General's Corps, U.S. Army, Personnel Directory, 1967, 1968,
Historians files, OTJAG.
66 Interv, author with Brig Gen Thomas R. Cuthbert, 2 Oct 96, Historians files,
OTJAG.
Ibid.
61 Ibid.; USARV Suppl. 1 to AR 27-10, Military Justice, par. 20-15b, 15 Jun 70.
69 Interv, author with Cuthbert, 2 Oct 96; interv, author with Col Burnett H. Radosh,
10 Jul 96, Historians files, OTJAG.
70 Interv, author with Cuthbert, 2 Oct 96.
71 Demma, "U.S. Army in Vietnam," pp. 672-83.
72 Prugh, Law at War, p. 51.
Ibid., p. 53.






JUDGE ADVOCATES IN COMBAT


74 Ibid., p. 59.
7 The first female judge advocate in Vietnam, Maj. Ann Wansley, served at U.S.
Army, Vietnam, in 1966 and 1967. The second, Maj. Nancy A. Hunter, served at the 4th
Transportation Command in 1970.
76 For statistics on U.S. Army disciplinary actions in Vietnam from 1965 to 1972, see
Prugh, Law at War, p. 154.
77 Interv, author with Maj Gen Wilton Persons, 17 Sep 96.
7 Prugh, Law at War, p. 107.
79 MACV, Command History, 1971, II: x-9.
0 Hammond, Military and the Media, 1968-1973, pp. 176, 382. See also Solis, Trial
by Fire, p. 129.
Interv, author with Col Barry P. Steinberg, 19 Aug 96, Historians files, OTJAG.
82 Hammond, Military and the Media, 1968-1973, pp. 378-79.
3 Ibid., p. 385.
84 Given the Army's disciplinary problems in Vietnam, some concluded that the
Uniform Code did not work well in combat situations. Generals Westmoreland and
Prugh noted that the military criminal justice system "is too slow, too cumbersome, too
uncertain, too indecisive, and lacking in the power to reinforce accomplishment of the
military mission." William C. Westmoreland and George S. Prugh, "Judges in
Command: The Judicialized Uniform Code of Military Justice in Combat," Harvard
Journal of Law and Public Policy 3 (1980): 4.
85 Prugh, Law at War, p. 85.
86 DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 5 Nov 71,
sub: Da Nang Ammunition Dump Cases, box 3, Records of the USARV Staff Judge
Advocate, Foreign Claims, RG 472, NARA.
87 Memo, USARV Staff Judge Advocate for Deputy Commanding General USARV,
22 Jan 71, sub: Foreign Claims Operations, box 3, Records of the USARV Staff Judge
Advocate Section, RG 472, NARA.
88 Ibid.
89 DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 11 Oct 71,
sub: Claims Against the United States Government, box 3, Records of the USARV Staff
Judge Advocate Section, RG 472, NARA.
90 Summary of After Action (SAA), Staff Judge Advocate, USARV/MACV Support
Command, 1973, Historians files, OTJAG.
Msg, Lt Gen Welborn G. Dolvin, CG, XXIV Corps, to Gen Creighton W. Abrams,
COMUSMACV, 27 Aug 71, sub: US/VN Confrontations, box 3, Records of the
USARV Staff Judge Advocate Section, RG 472, NARA.
92 DF, Chief, Foreign Claims Division, to USARV Staff Judge Advocate, 12 Nov 71,
sub: Confrontation at HQ XXIV Corps, box 3, Records of the USARV Staff Judge
Advocate Section, RG 472, NARA.
9 Interv, author with Col Donald A. Deline, 18 Sep 96, Historians files, OTJAG.
94 Hammond, Military and the Media, 1968-1973, pp. 505-08. See also Keith W.
Nolan, Sappers in the Wire: The Life and Death ofFirebase MARY ANN (College Station,
Tex.: Texas A&M University Press, 1995).
9 Interv, author with Maj Gen William K. Suter, 25 Jul 96, Historians files, OTJAG.
9 Interv, author with Honorable Royce C. Lamberth, 29 Jul 96, Historians files,
OTJAG. The following paragraphs are based on this interview.
7 William E. Le Gro, Vietnam from Cease-Fire to Capitulation (Washington, D.C.:
Government Printing Office, 1981), p. 18.
98 Prugh, Law at War, p. 49.






VIETNAM


Interv, author with Col Vahan Moushegian, Jr., 24 Jun 96, Historians files,
OTJAG. The following account is based on this interview.
"0 Intervs, author with Lt Col Jerome W. Scanlon, 2 Aug, 28 Oct, and 30 Oct 96,
Historians files, OTJAG. The following account is based on these interviews.














2


Grenada

Army Lawyers in Transition


Grenada was a real wake-up call for us.'
-Capt. Gary L Walsh
judge Advocate, 82d Airborne Division

Early on 25 October 1983, U.S. Army Rangers spearheaded Operation
URGENT FURY, attacking Point Salines airport on the Caribbean island
of Grenada in a daring parachute assault.2 The Ranger mission was to
seize this airstrip and then evacuate the several hundred American stu-
dents attending St. George's University Medical School. A U.S. Marine
Corps battalion landed at approximately the same time on the other side
of Grenada, seizing the nearby Pearls airport. Units from the 82d
Airborne Division arrived shortly thereafter to clear the island of
enemy resistance and ultimately provide an occupation force. All told,
URGENT FURY involved two battalions of some 650 Rangers from Fort
Stewart, Georgia, andF ort Lewis, Washington; six battalions compris-
ing roughly 6,100 paratroopers from the 82d Airborne Division, Fort
Bragg, North Carolina; and a marine amphibious unit of approximate-
ly 2,000 marines. Additionally, Army, Navy, and Air Force special oper-
ations forces from various U.S. locations participated in this operation,
as did a small number of personnel from the XVIII Airborne Corps.
Although the Rangers at Point Salines were opposed by elements of
the 1,200-man Grenadian People's Revolutionary Army and some 700
armed Cuban construction workers at the airfield, enemy ground fire was
suppressed fairly quickly, and Ranger casualties were relatively light.3
The Marine heliborne assault against Pearls was unopposed, and ele-
ments of the 82d Airborne Division arriving later that same day also land-















OPERATION URGENT FURY
JUDGE ADVOCATE LOCATIONS
October-December 1983

GRENADA

ELEVATION IN FEET

0 300 600 and Above

0 10
SKilometers Miles


C A R I B B E A N
S E A


,Diamond Is
C,

.DRiondd Is










A T L A N T I C
e -ursc /


Little Saint Vincent



Ap Little
f Martinique


2 eo R -AnguillaZ ATLANTIC
PueoRSo rSManr,n OCEAN
Z, B5ARBUDA

SNEVIS CANTIGUA

^ Jo truadetoupe

VDOMINICA

Martfique
CA RIBBEEA N
S E A STLUCIA

ST VINCENT
BARBADOS


GRENADA


S TOBAGO
TRINIDAD
-VENEZUELA ^ /


MAP 4





GRENADA: ARMY LAWYERS IN TRANSITION


ed with only minor opposition. Although some resistance from Cuban
and People's Revolutionary Army personnel continued over the next few
days, by 3 November 1983 hostilities had ended, and Vice Adm. Joseph
Metcalf III, the commander of the joint task force with overall responsi-
bility for URGENT FURY, passed military operations to Army Maj. Gen.
Edward L. Trobaugh, the commander of the 82d Airborne Division, who
became Commander, U.S. Forces, Grenada. (Map 4)

Background
What was the legal authority for the U.S. intervention in Grenada?
Grenada had become independent in 1974. Although a British gover-
nor-general had continued in residence, he played only an advisory
role, and Great Britain divorced itself from the affairs of state in this
former colony. Since elections held in 1979, the Marxist-oriented New
Jewel Movement had governed Grenada. Its leader, Maurice Bishop,
had invited Cuba, the Soviet Union, and other Communist states to
assist the young island nation. The Cubans provided considerable aid,
including military advisers and troops. By 1983, however, a feud
between two factions of the New Jewel Movement had led to blood-
shed, and conditions on Grenada had deteriorated. Prime Minister
Maurice Bishop was killed, the elected government collapsed, and a
"Revolutionary Military Council" took power. When that council
declared martial law, including "the closing of travel to or from
Grenada, a news blackout, and a 24-hour shoot-on-sight curfew,"4 the
Reagan administration concluded that this turmoil had "converted the
long-term problem of a Cuban presence in the Windward Islands into
an immediate danger"5 for the almost 1,000 U.S. citizens on the island.
Consequently, the United States cited the protection of the lives of U.S.
citizens, accomplished through a noncombat evacuation operation, as
one legal basis for intervening in Grenada. In doing so, the United
States justified URGENT FURY, in part, under international law, as a form
of self-defense.6
Additionally, the Organization of Eastern Caribbean States
(OECS)7 made the decision at a 21 October meeting that conditions on
Grenada posed a threat to regional security and stability. Consequently,
the organization requested that Barbados, Jamaica, and the United
States participate in a collective security force. This OECS invitation to
join in a peacekeeping operation supported a 24 October 1983 request
from the governor general of Grenada, Sir Paul Scoon, for a "peace-
keeping force in Grenada to facilitate a rapid return to peace and
tranquility and also a return to democratic rule."8 The OECS invitation






JUDGE ADVOCATES IN COMBAT


to the United States to join a collective effort to ensure the peace and
security of the Eastern Caribbean constituted a second legal basis for
undertaking URGENT FURY. Implicit in the acceptance of such an invi-
tation was a U.S. willingness to assist the OECS and Grenadian author-
ities in restoring a democratic government on the island.
Army lawyers, one of whom arrived with the first wave of the 82d
Airborne on 25 October, would have a continuous presence in Grenada
until 15 December 1983.9 Initially, Army leaders expected these
lawyers to focus only on specific issues related to the status and treat-
ment of prisoners of war and civilian detainees. In addition, it was
anticipated that judge advocates would deal with those types of admin-
istrative and criminal law matters routinely generated by the commands
they supported at home station. In other words, a commander's expec-
tation of the type of legal support to be provided by judge advocates
was still being driven by a concept of the role traditionally played by
Army lawyers.
Army judge advocates, however, had now been involved in the
detailed review of OPLANs, pursuant to the My Lai-generated DOD
Directive 5100.77 of 1974, for almost nine years and were far more
aware of the potential for encountering legal issues impacting on the
conduct of an operation. As a result of this increased awareness,
lawyers on the ground in Grenada sought out and became involved in
numerous issues, and the resolution of these matters proved critical to
the success of URGENT FURY. Such issues included the preparation of
rules of engagement and related guidance for both the combat and the
peacekeeping phases of URGENT FURY; formulating a command policy
on war trophies; advising on the treatment of captives; and advising the
State Department on the preparation of a Status of Forces Agreement.
Judge advocates also created a centralized procedure for paying claims
for damaged and seized property; advised the Grenadian government
on drafting domestic law; and provided liaison with various U.S. gov-
ernment agencies and other non-U.S. organizations such as the
Caribbean Peacekeeping Force and the International Committee of the
Red Cross. Finally, Army lawyers learned that they must be better pre-
pared to provide timely and more comprehensive assistance to both
deployed troops and their families back home. This required the cre-
ation of a Family Assistance Center at Fort Bragg designed to provide
continued assistance with personal legal problems, including the draft-
ing of wills and the execution of powers of attorney.
This account of the operations of the Judge Adyvocate General's
Corps during URGENT FURY details the expanding "nontraditional"
roles assumed by Army attorneys during the three phases of the opera-





GRENADA: ARMY LAWYERS IN TRANSITION


tion: the "preparation and hostilities" phase, the "State of Emergency"
phase, and the "stabilization" phase. Each section deals with what
Army lawyers accomplished, both in Grenada and at Fort Bragg, in
support of Operation URGENT FURY.

Phase I, Preparation and Hostilities (24-28 October 1983)
Judge advocates faced a significant handicap in planning for URGENT
FURY: military lawyers had little knowledge of the projected operation
until a few days prior to departure. The need for secrecy and security,
in fact, hampered military planning at many levels, as the U.S. defense
community's organization for rapid, joint contingency operations of
this nature was still rudimentary. The first judge advocate on the
ground in Grenada had little more than twelve hours' notice of his
deployment.
The XVIII Airborne Corps' deputy staff judge advocate, Lt. Col.
David McNeill, Jr., was the first military lawyer at Fort Bragg to learn
of Operation URGENT FURY. He was briefed on the deployment by the
corps deputy chief of staff on Sunday afternoon, 23 October, and told
to research the "extent of 'martial law' powers on foreign soil."10
Shortly thereafter, McNeill relayed this conversation to his chief, the
corps' staff judge advocate, Col. Michael M. Downes. Although both
Downes and McNeill were interested in the upcoming combat opera-
tion, they knew that no corps lawyers would be deploying to Grenada
with the initial invasion force. General John W. Vessey, Jr., chairman of
the Joint Chiefs of Staff, had decided against using the XVIII Airborne
Corps as a follow-on unit, relieving the special operations troops after
the initial assault. Too many "high-ranking officers on the ground," the
chairman believed, would only "increase the perception that thie United
States was overreacting in Grenada.""
Consequently, Vessey "directed that only two battalions of the 82d
Airborne be deployed to Point Salines airfield after the assault was fin-
ished."12 Judge advocate tasks on the ground would thus be handled by
elements of the 82d Airborne Division. Its staff judge advocate, Lt. Col.
Quentin Richardson, had yet to be informed about the operation.
Downes contacted Richardson in the early evening hours of
Monday, 24 October, relaying to a surprised Richardson that the 82d's
movement into Grenada was expected the next day. Colonel
Richardson had only that evening and the early morning hours of the
next day to prepare for departure-and with travel on a C-141 sched-
uled for Tuesday, 25 October, at 10 A.M., he had little time to plan
judge advocate operations. Due to the fact that judge advocates had





JUDGE ADVOCATES IN COMBAT


rarely become involved in tactical operations in the past, their absence
from the planning process in this instance was neither remarkable nor
an oversight.
At 8 P.M., 24 October, the entire division was placed on alert, and
all of its judge advocates reported for duty. At 10 P.M., as a member of
the division's special staff, Colonel Richardson attended a division
briefing on URGENT FURY at which members of the assault command
post were identified. There, General Trobaugh, Commanding General,
82d Airborne Division, stressed that his Civil Affairs (G-5) staff sec-
tion would be "particularly busy" in refugee matters, but he included no
lawyer in his small assault command post.13 Richardson, however,
quickly convinced the chief of staff, Col. Peter J. Boylan, that the com-
mand group would require legal support from the beginning of the
operation, and, as General Trobaugh was deploying, Richardson deter-
mined that the staff judge advocate must deploy as well. The G-3 (oper-
ations) officer was quickly told to include a lawyer in the initial com-
mand party. Although this decision, which resulted in another staff offi-
cer's staying behind, was unpopular in some quarters, Richardson later
reflected that it "was the smartest thing I did."'4
While Colonel Richardson was the lone lawyer in the command
post, an officer who would later join the Judge Advocate General's
Corps was working alongside him. This was Infantry 1st Lt. James E.
Macklin, who, as an assistant G-3 operations officer, was primarily
responsible for deploying the thirty-man assault command post to
Grenada.15
While Richardson was working with the division staff, the 2d
Brigade trial counsel, Capt. Glenn E. Murray, and Capts. Carlton L.
Jackson and Clyde J. Tate, both division legal assistance officers,
reported to the 2d Brigade headquarters. As this brigade was providing
the battalions for the initial assault, these lawyers began the legal chores
necessary to prepare soldiers for active operations, including preparing
and executing wills and powers of attorney.16 The possibility of combat
made a will attractive to many young soldiers, most of whom had never
cared to address the issue previously. Similarly, few had prepared those
powers of attorney documents necessary to enable spouses or parents to
negotiate paychecks and write checks.
At approximately 11:30 P.M., Richardson drew a weapon and pro-
tective mask and reported with his pack to division headquarters, later
gathering C-rations, a poncho liner, a flak jacket, and a parachute.
Along with these items, Richardson took Field Manual 27-10, The Law
of Land Warfare, the Manual for Courts-Martial, paper, and several
pens. This would have to serve as his legal library. At 10 A.M., 25





GRENADA: ARMY LAWYERS IN TRANSITION


October 1983, he departed Pope Air Force Base on a C-141 aircraft
with the command party.
The assault command post aircraft arrived at Point Salines airport
around 2 P.M. Although the airport had been seized by the Rangers ear-
lier that day, sniper fire could still be heard. Consequently, the plane
circled, waited for this sniper fire to die down, and then landed about
3:15 P.M. For the next three days, Colonel Richardson, along with the
rest of the command post, operated in the Point Salines terminal. Duty
was two hours on, four hours off. No further contact was made with the
enemy. Conditions were primitive, and the command post was without
lights, water, or latrines. On 26 October, the day following his arrival,
Richardson's real work began.

Prisoner of War-Issues
Initially, Colonel Richardson focused his attention on the growing num-
ber of prisoners of war, detainees, and civilians in American hands. The
U.S. military commanders had not expected to assume control over so
many persons, so quickly. The Rangers had set up a prisoner of
war/detainee camp on the previous morning, 25 October. The camp,
located on a high hill to the rear of the airport terminal, consisted of
recently abandoned sleeping quarters for Cuban construction workers.
The Rangers had been relieved of their responsibility for the camp that
afternoon by the Caribbean Peacekeeping Force. However, this force,
consisting of some 300 peacekeepers from two OECS member states-
Barbados and Jamaica-had no experience in administering such
camps.'7 Food was in short supply; there was no electricity and very lit-
tle water; and sanitary facilities were minimal. In addition, security was
lax. No list of the camp's members had been compiled, nor had any
attempt been made to classify them by status. Now, control and opera-
tion of the prisoner/detainee camp was to pass from the Caribbean
Peacekeeping Force to the 82d Airborne Division.
The classification issue proved to be a thorny one. U.S. forces were
opposed by Cuban military personnel and the Grenadian People's
Revolutionary Army. Although there was no declaration of war accom-
panying Operation URGENT FURY-the United States and Cuba never
stated that they were at war-Army lawyers determined that a de facto
state of hostilities existed. This meant that common article 2 of the
1949 Geneva Conventions for the Protection of War Victims (GPW)
applied. Under that article, neither a formal declaration of war nor a
recognized state of war is required in order for the conventions to apply.
Article 2 states that "the present Convention shall apply to all cases of





JUDGE ADVOCATES IN COMBAT


declared war or of any other armed conflict which may arise between
two or more of the High Contracting Parties, even if the state of war is
not recognized by one of them [emphasis supplied]."
Consequently, Army lawyers at the Office of the Judge Advocate
General in Washington, D.C., in conjunction with DOD and State
Department authorities, determined that the 1949 GPW Convention
applied and that all persons captured should be treated as prisoners of
war. This was a significant decision. Individuals afforded prisoner of
war status actually receive more rights and privileges than persons
placed in a "retained" status or civilian internees. Thus, although the
United States recognized the-convention's differentiation between pris-
oners of war, retained personnel,"8 and civilian internees, all individuals
taken into military custody were regarded as prisoners of war and treat-
ed as such until a more informed determination of their status could be
accomplished.
As a result, the 440 Cuban civilian construction workers captured
on Grenada were treated as prisoners of war, along with all other Cuban
nationals and other persons captured by Caribbean Peacekeeping Force
and U.S. personnel. Treating these workers as prisoners of war pending
a decision on their actual status benefited commanders, as there was no
time to classify these individuals during the brief hostility phase.
Treating all Cubans and Grenadians taken into custody as prisoners of
war also proved to be a wise public relations decision. As considerable
criticism resulted from the U.S. intervention, this determination
demonstrated that the United States was serious about meeting its
responsibilities under international law.
When the 82d Airborne Division's acting provost marshal and a
military police unit arrived on 28 October, Colonel Richardson advised
them and the Caribbean Peacekeeping Force that the legal decision had
been made to treat all those in the prisoner/detainee camp as prisoners
of war, regardless of their actual status under the Geneva Conventions.
Later, all detained persons were screened and classified as either POW,
retained personnel, or civilian internees. In the meantime, the wounded
and sick received care, and the Red Cross was invited to observe the
detention conditions of all personnel. Wounded and sick Cuban per-
sonnel, as well as some Cuban medical personnel, were eventually
repatriated to Cuba, and Cuban and Grenadian prisoners were permit-
ted contact with their next of kin within seven days of capture.
Day-to-day operation of the prisoner of war/detainee camp passed
from the Caribbean Force to the military police, with Richardson con-
tinuing to provide legal advice on the treatment of captured personnel.
For example, he advised that the twenty to thirty Cuban medical per-





GRENADA: ARMY LAWYERS IN TRANSITION


sonnel captured were entitled to "protected" status under the Law of
War and must be permitted to minister to the sick and wounded in the
camp. Richardson also advised that a list containing the name of each
individual held in the camp was required. In both instances, his advice
was followed. In fact, the utility of having judge advocates on the scene
was demonstrated repeatedly in a variety of more minor matters. When,
for example, one U.S. military intelligence officer told the prisoner of
war camp commander that using Cuban evaporated milk to feed
refugee babies "was in violation of the Geneva Convention,"
Richardson intervened, noting that such was not the case.9

Other Legal and Nonlegal Issues
Next to providing legal and practical advice concerning the administra-
tion of the prisoner/detainee camp, the most important task for Army
lawyers in Grenada was the provision of legal support to their own
troops. On 27 October Richardson's lone operation was bolstered by the
arrival of Capt. Glenn Murray, trial counsel for the 2d Brigade, and
Capt. Gary L. Walsh, trial counsel for the 3d Brigade. Murray arrived
first, thus becoming the second judge advocate on the island. Walsh
arrived a short time later that same morning.
While Colonel Richardson briefed Murray on issues that he might
face as a judge advocate, Captain Walsh went directly on patrol with his
unit in order to gain a feel for the operation. Prior to leaving Fort Bragg,
Walsh had asked to draw an M 16 from his headquarters company arms
room. This request was refused. While other officers were issued rifles,
"a .45-caliber pistol was considered sufficient protection for a JAG."
But Captain Walsh put his handgun to good use. When his reconnais-
sance platoon took small-arms automatic fire from Cuban and People's
Revolutionary Army elements, Walsh took cover in a ditch and returned
fire, now regretting that he had not insisted upon receiving an M16
from the armorer. Walsh did not shy away from undertaking further
military tasks as well, and when a battalion commander later asked him
to lead a patrol escorting investigators to a helicopter crash site,
Captain Walsh-still lightly armed with his .45-willingly accepted the
mission.20
Colonel Richardson had expected that legal assistance for
deployed troops would be limited. However, due to the rapidity of the
deployment with little advance notification, he found that "long lines
of soldiers were waiting to talk with JAG officers" about wills, debt
payments, and other legal issues.2' Additionally, as URGENT FURY was
initiated close to an end-of-month payday, with few powers of attorney





JUDGE ADVOCATES IN COMBAT


in effect, many spouses at Fort Bragg would soon be receiving ser-
vicemembers' paychecks without the ability to cash them.22
Consequently, powers of attorney prepared by judge advocates in
Grenada had to be returned to Fort Bragg as quickly as possible for use
by military dependents.
Colonel Richardson was also called upon to solve problems in three
other areas. About 5 P.M. on 26 October, Rangers rescued 240 American
students from the St. George's medical school campus located near
Point Salines airport. In the absence of the G-5, Richardson and the
division command sergeant major organized the evacuation of these
students to the United States, The last group of students was on a
C-141 to Charleston Air Force Base, South Carolina, within four hours.
Richardson then learned of a substantial supply of food located at
a Cuban camp about one mile from the Point Salines airstrip. The chief
of staff ordered the logistics officer (G-4) to provide the needed vehi-
cles and, protected by an escort provided by the operations officer
(G-3), Richardson traveled to the camp and discovered enough food to
feed 1,000 people for several weeks. Certain supplies were taken for the
prisoner/detainee camp.
The Army's graves registration team did not arrive until Friday, 28
October. Two days earlier, however, the presence of bodies had become
a health problem. When General Trobaugh queried his staff regarding
the applicable health and legal requirements, Richardson advised that
the dead should be buried, the graves marked with identifying informa-
tion, and the names and locations recorded on a master written roster.

Lessons Learned by D+3
By the end of the day on 28 October, Army lawyers had already drawn
specific conclusions from their three days in Grenada. First, judge
advocates must be included in the planning of contingency operations
from the beginning; lack of notice hinders preparation for potential
legal problems. Additionally, giving correct and complete legal advice
depends on understanding the nature and purpose of the deployment, as
well as the legal authority for the U.S. military action in issue. Second,
providing soldiers legal advice prior to deployment is critical. Legal
assistance, however, will be a continuing need for both deployed troops
and their families. Third, the operation had shown that Army lawyers
must be prepared to solve or advise on nonlegal or quasi-legal opera-
tional issues, as well as legal matters associated with the conduct of the
operation, and that many of these issues cannoT be anticipated.
Examples included the evacuation of U.S. nationals and the setting up





GRENADA: ARMY LAWYERS IN TRANSITION


of a graves registration system. Traditional issues of military justice
were found to be of minimal concern initially; deployed soldiers were
far too busy to get into serious trouble. Army lawyers did not render
criminal law advice during their first few days on Grenada, except to
provide guidance on potential nonjudicial proceedings for minor mis-
conduct. Finally, the patrolling experiences of Captain Walsh demon-
strated that judge advocates must expect to take on decidedly nonlegal
responsibilities.

Phase II, State of Emergency, 29 October--15 November 1983
Although an official end to hostilities came with Governor General
Scoon's proclamation of a State of Emergency on 1 November 1983,
the fighting on Grenada was over by 29 October. The three days
between that date and the official start of the State of Emergency was
a twilight period during which U.S. forces maintained order and pre-
pared for the official return of a lawful, democratic government in
Grenada.
As additional legal expertise was required for the State of
Emergency phase, Army lawyers from outside the 82d Airborne
Division began arriving on 29 October.23 Although the XVIII Airborne
Corps had no follow-on mission in URGENT FURY, most of these new
lawyers did come from that corps. As the corps was the 82d's higher
headquarters and collocated with it at Fort Bragg, corps judge advo-
cates had established a prior working relationship with the division.
Colonel Downes, the corps staff judge advocate, had quickly
deployed corps lawyers Lt. Col. John P. Weber, Maj. Normand J.
Hamelin, and Capt. Marc L. Warren to Grenada. Working together,
corps and division judge advocates focused on the requisition and
seizure of Cuban and Grenadian property, both personal and real; relat-
ed claims by owners for compensation; criminal matters; and adminis-
trative law, to include the drafting of orders regulating the conduct of
U.S. troops in Grenada. They also provided advice to the acting attor-
ney general of Grenada on drafting a preventive detention ordinance
and to U.S. State Department personnel on drafting a Status of Forces
Agreement applicable to U.S. personnel in Grenada. Aside from the
continuing need to provide legal assistance to troops and advice to
those administering the prisoner of war camp, they also handled Law of
War and other international law issues, including the alleged illegal
bombing of a Grenadian hospital, the classification of detainees, the
status of foreign diplomatic personnel, and issues surrounding the pos-
session of war trophies. Additionally, judge advocates led the investi-





JUDGE ADVOCATES IN COMBAT


Left to right: Capts. Doug Fletcher, Clyde J Tate, and Jack T Tomarchio,
all 82dAirborne Division lawyers, Grenada, November 1983. The pro-
American graffiti in the background was done by the local populace
and appeared virtually overnight.

gation of a friendly fire incident and drafted rules of engagement for
the use of force by U.S. troops during the State of Emergency phase.

Law of War and Other International Law Issues
The 82d Airborne Division After Action Report for URGENT FURY
records that "the law of war responsibilities [were] perhaps the most
unpredictable and the most difficult with which to deal."24 Given the
lack of a declared state of war between the United States and Grenada
or Cuba and the resulting complexity of the prisoner of war issue in
Grenada, the division's comment is not surprising.
Responsibilities for Law of War issues in the State of Emergency
phase passed to Major Hamelin, an international law specialist assigned
to the XVIII Airborne Corps. Hamelin, who arrived on 31 October
1983, acted as a liaison to the U.S. embassy. By 4 November he had
established a relationship with the principal outside organization
observing U.S. conduct in Grenada, the fifteen-member team from the
International Committee of the Red Cross. Working with the Red
Cross, Hamelin ensured that Law of War principles were observed in
the prisoner of war camp.





GRENADA: ARMY LAWYERS IN TRANSITION


An important Law of War lesson for all judge advocates was their
recognition that it was their singular responsibility to ensure that com-
manders complied with the Department of Defense Law of War
Program, particularly its provisions requiring the investigation of any
violations of the Law of War by or against U.S. military personnel.25 "
This requirement resulted in two investigations. The first dealt with the
bombing of a mental hospital near Fort Frederick in the southern sec-
tion of the island. The second concerned the possible murder of a /
Marine Corps pilot who had landed his disabled helicopter near the
small harbor of St. George's.26 The investigating judge advocates quick-
ly concluded that early involvement of the U.S. Army Criminal
Investigation Command (CID) was the key to solving many of the more
practical problems in both incidents.
On 4 November, during the evening command briefing, the
involved judge advocates initially debated whether a preliminary inves-
tigation of the hospital bombing was required. At the time, the only sign
of any violation of the Law of War was an ambiguous "news media
report." But, as any credible report requires an inquiry, the decision was
made to investigate, and Major Hamelin was tasked with the job.
The next day Hamelin visited the mental hospital with two CID
agents. The men took photographs showing that, unlike the roofs of
other hospitals in Grenada, there was no red cross marking on the hos-
pital roof. In addition, the walls of the building were marked with the
symbol of the People's Revolutionary Army (large red dots on a white
background), and a common wall joined the mental hospital to the rev-
olutionary army headquarters building at Fort Frederick. They also
noted that the People's Revolutionary Army had positioned two antiair-
craft batteries approximately fifty meters from the mental hospital, near
the nurses' quarters, and that on 25 October, the day of the bombing,
weapons were fired from inside the hospital and from the antiaircraft
positions adjacent to its walls.
Based on this information, Hamelin concluded that there had been
no violation of the Law of War. The findings of this initial investigation,
later adopted by an investigative team sent by higher headquarters to
examine reported war crimes in Grenada, demonstrated conclusively
that no crime had occurred. The decision to conduct a prompt CID-sup-
ported investigation not only ensured command compliance with the
law, but also helped correct the erroneous report of a "war crime." Later
news media reports accurately reflected these findings.27
As for the Marine pilot, interrogation reports relating to a
Grenadian national known as "Preacher Man" indicated that he had
fired a full magazine from his AK-47 into the body of the already





JUDGE ADVOCATES IN COMBAT


deceased pilot. While a violation of the Law of War, this did not con-
stitute murder.28
Another unanticipated international law issue that arose was the
treatment of foreign diplomats. A number of Cubans had fled to the
Soviet embassy, where they sought asylum and safe passage out of
Grenada. Additionally, the diplomats of embassies and consulates of
governments unfriendly to the United States frequently claimed
"immunity" from searches for weapons conducted by U.S. soldiers at
checkpoints. These claims of immunity and the general status of diplo-
mats required Army lawyers to examine the Vienna Convention on
Diplomatic Relations.29 They concluded that the convention did not pre-
clude checkpoint searches of diplomatic personnel suspected of pos-
sessing guns or ammunition and that any such contraband discovered
could be seized lawfully. Later, when many of these same diplomats-
and their vehicles-were flown out of Grenada on C-1 41s, judge advo-
cates again advised that the Vienna Convention did not prevent search-
es of diplomats or their property aboard these military aircraft; legiti-
mate safety and security concerns took priority.30
Finally, Colonel Weber, the chief of administrative law for the
XVIII Airborne Corps, advised the acting attorney general of Grenada
on the contents of a preventive detention ordinance that would end the
State of Emergency and set strict limits on the authority of foreign mil-
itary personnel to apprehend, detain, search, and interrogate
Grenadians. As U.S. and CPF personnel intended to continue manning
roadblocks throughout the island in furtherance of public order, Weber
drafted language for such an ordinance.3'

Rules of Engagement
Rules of engagement (ROE) are the commander's rules for the use of
force. They are shaped not only by the Law of War, but also by the
politico-military situation on the ground. The rules used in the hostili-
ties phase in Grenada were the responsibility of the operational com-
manders, and although the ROE link with the Law of War meant that
Fort Bragg-based lawyers should have participated in their formula-
tion, none did so, as judge advocates were not involved with the divi-
sion's planning for URGENT FURY.
By 2 November fighting on Grenada was at an end, and U.S. forces
had assumed a peacekeeping role. The hostilities-phase rules of
engagement naturally had focused on using force against an opposing
armed force. Peacekeeping during the State-of-Emergehncy phase, how-
ever, required new rules of engagement focused on restoring and then





GRENADA: ARMY LAWYERS IN TRANSITION


maintaining law and order. Guidelines on dealing with individuals car-
rying or using weapons were needed. Consequently, Captains Walsh,
Murray, and Mark Winkler worked with corps judge advocates Major
Hamelin and Captain Warren in writing new rules of engagement.32
Lawyer involvement in the ROE process also flowed naturally from the
requirements of the 1979 Defense Department directive establishing
the Law of War Program.33 As noted previously, initially promulgated in
1974 as a direct result of the Army's experiences in Vietnam, the direc-
tive not only required that U.S. armed forces comply with the Law of
War, but it also required that they implement training programs to pre-
vent Law of War violations. Also required was the "prompt reporting
and investigation" of violations of the Law of War. The rules of engage-
ment remained the responsibility of the commander, and their formula-
tion resided in the domain of the operations officer (G-3). However, the
legal expertise required for the interpretation of and compliance with
the Department of Defense Law of War Directive logically resulted in
military lawyers advising on-and actually writing-the rules of
engagement for peacekeeping activities in Grenada.
These new rules of engagement required the application of "mini-
mum force consistent with mission accomplishment." This mission was
defined as helpingn] restore and maintain law and order until such
time as the host government can control the situation."34 The rules cov-
ered the use of deadly and nondeadly force, targeting, self-defense, and
warning shots, as well as procedures for controlling weapons, engaging
snipers, and conducting searches. There was also an attempt to reduce
the possibility of injury to "innocent bystanders" by severely restricting
the use of force. For example, "great selectivity and precision" were
required when using deadly force, and soldiers were to "aim, when pos-
sible, to wound, not to kill.""35 Similarly, weapons were not to be fired
"except at clearly identified point targets," and "loudspeakers" were to
be used "to persuade" a sniper to surrender before resorting to "well-
aimed fire."36
These rules of engagement were used by 82d Airborne Division
and XVIII Airborne Corps troopers after the cessation of hostilities,
then by U.S. Forces, Grenada, and finally by the Military Support
Element that remained in Grenada after combat troops had left.

Claims
Claims operations generated much goodwill among the populace in
Grenada.37 A major issue involved compensation for the requisition or
seizure of private property by U.S. forces. In the initial stages of





JUDGE ADVOCATES IN COMBAT


URGENT FugY, the 82d Airborne Division had requisitioned or seized
buildings, vehicles, and other property belonging to the Cuban and
Grenadian governments, as well as to private individuals.
Unfortunately, public and private property was used without a differen-
tiation being made in ownership. In terms of private property, this
meant that not only were requisitions or seizures made without the
knowledge or approval of the command, but that no records were kept
of what was seized or receipts given to the owners of the property.
Consequently, when hostilities ended and Grenadians filed claims
against the United States for loss of or damage to their private proper-
ty, it was difficult to determine which claims merited compensation.
To protect the interests of both Grenadian claimants and the United
States, Army lawyers moved quickly to inform the command on the law
governing the seizure and use of public and private property in combat
operations.3 They advised that "enemy state" property may be used for
any appropriate purpose. No compensation is payable for the use of
such public property, and it need not be returned to the hostile govern-
ment at the cessation of hostilities. For example, it is permissible to use
government vehicles, fuel, and other movable property. Public build-
ings may also be occupied and used. The food Colonel Richardson
seized on 26 October was but one small example of a seizure of enemy
public property.
Military attorneys also informed the command that private property
might be seized or requisitioned if necessary to accomplish a military
mission. Thus, privately owned movable property, such as communica-
tions devices, vehicles, weapons, and ammunition, might be seized. Once
hostilities ended, however, restoration of such seized property to its own-
ers was required, and compensation must be paid for its use and any dam-
age done to it. Thus, receipts should be given when property is seized and
a record kept of all seizures. And while practically any type of private
property might be requisitioned, judge advocates advised that requisi-
tions be limited by the actual needs of the force, the extent of the coun-
try's resources, and humanitarian obligations-prerequisites not applica-
ble to the seizure of public property. Military lawyers further advised that
coercion was permitted, if necessary, to requisition articles, but noted that
the requisition of private property should be made only under the order
of the senior area commander and recommended the establishment of a
centralized system and payment in cash. If there was no cash available, a
receipt was to be given. Again, however, once hostilities ceased, seized
and requisitioned private property had to be restored to its owners and
compensation paid. Finally, compensation had to be made for any dam-
age to such property resulting from its use by U.S. personnel.





GRENADA: ARMY LAWYERS IN TRANSITION


On 28 October the Army was assigned sole responsibility for the
adjudication and payment of all claims arising from URGENT FURY. Due
to the number of claims, the commander of the U.S. Army Claims
Service appointed Major Hamelin and Captain Warren as one-member
claims commissions. As such, each could administratively settle a non-
combat claim for personal injury, death, or property damage up to
$2,500. The Claims Service also created a three-member commission,
composed of Captain Warren, Colonel Weber, and a nonlawyer civil
affairs officer, authorized to settle noncombat claims up to $25,000.
By 30 October claims inquiries were being made by individuals
whose homes had been looted or vehicles damaged. Judge advocates
instructed these claimants that the U.S. Claims Office would open
toward the end of the week on the wharf near a popular restaurant. On
7 November, with the help of local Grenadian businessmen, a claims
office with all three claims commissions in operation opened in a store-
front location in downtown St. George's. By the end of the first week,
claims judge advocates had received some seventy-five claims and had
paid more than $5,000.
Captain Warren, assigned to the XVIII Airborne Corps, led the ini-
tial claims efforts in Grenada. Key to his success was the 1/4-ton Jeep.
Wheeled transportation not only facilitated the investigation of claims,
but also enabled judge advocates to gather valuable information to pass
on to military intelligence officers. For example, while conducting an
investigation, claims lawyers were informed of a hidden weapons
cache. This information proved to be accurate, and it resulted in the
first corps-level seizure of enemy AK-47 assault rifles, ammunition,
and communications gear.
Similarly, Grenadians filing claims sometimes provided informa-
tion concerning individuals termed to be "bad actors," or Marxist New
Jewel Movement members still at large. A man entered the St. George's
claims office one morning and advised Captain Warren and the claims
legal clerks that a Grenadian named Chester Humphries, then wanted
by the police, was outside on the street at that very moment. As there
were no other U.S. personnel in the area and the claims office had no
radio or telephone capabilities, Captain Warren quickly closed-the
office, and he and the legal clerks set off in pursuit of Mr. Humphries.
During a short chase, Humphries drew his .38-caliber revolver, but see-
ing Warren's .45-caliber handgun and the legal clerks' M16 rifles lev-
eled at him, he thought better of resisting. He was taken into custody
and turned over to the local authorities. As a result of the Humphries
episode and the constant high quality of information collected by
claims lawyers, a counterintelligence soldier was subsequently





JUDGE ADVOCATES IN COMBAT


assigned full-time to the claims office in St. George's to expedite the
gathering of such data.39
Filing compensation claims quickly became popular, and the rapid
/ payment of these claims appeared to garner goodwill for the United
States. However, the Foreign Claims Act prohibited the payment of
combat-related damage. This restriction caused political difficulties for
Army claims lawyers, as there was a desire on the part of other U.S.
government agencies to quickly rebuild Grenada. Eventually, the U.S.
/Agency for International Development implemented a program to fund
and pay validated Grenadian claims for combat damage.

War Trophies and Soldier Conduct
The regulation of the general conduct of GIs, to include the taking of
captured property as war trophies and the treatment of detainees,
involved critical issues. On the subject of war trophies, Army regula-
tions did provide some guidance for individual soldiers. For example,
contrary to the perception of many soldiers and commanders, it was
illegal to privately possess certain captured items, such as an AK-47.40
To assist the command group in controlling the seizing of items as war
trophies, judge advocates authored a directive entitled "Captured
Enemy Property." Army Maj. Gen. Jack B. Farris, who succeeded
General Trobaugh as commander of U.S. Forces, Grenada, formally
published this as an order on 8 November.41 The directive prohibited the
confiscation of private property and reminded soldiers that wrongfully
taking such property constituted a violation of the Uniform Code of
Military Justice. Soldiers were advised as well that enemy property
became the property of the United States and that wrongfully retaining
such property also violated the Uniform Code. The directive set forth a
"limited exception," however, providing that "captured enemy military
clothing (i.e., hats, shirts, belts, trousers and insignia)" might "be
retained as souvenirs." Certain items of captured enemy individual
military equipment (i.e., helmets, loadbearing equipment, canteens,
mess kits, and ammunition pouches) could also be taken as souvenirs,
while bayonets and firearms could not.42
Army lawyers drafted a second directive for General Farris' signa-
ture, dealing with the treatment of Grenadian citizens and other foreign
nationals detained by U.S. forces. This directive did not address the
detainees housed in the prisoner/detainee compound, as their treatment
was dictated by the GPW Convention. Rather, this directive focused
specifically on the treatment of detainees at U.S. and Caribbean
Peacekeeping Force checkpoints. Signed on 15 November, it required





GRENADA: ARMY LAWYERS IN TRANSITION


that "detained citizens of Grenada [be treated] courteously and
humanely at all times." U.S. forces were not to threaten Grenadians and
were to "respect their persons, property, family rights, religious con-
victions, and customs." The directive emphasized that Grenadians must
be treated "as citizens whom we wish to question, not as criminals," as
most "are patriotic Grenadians who support the U.S. presence here." It
went on to note that U.S. treatment "of each Grenadian must result in a
reinforcement of his support of our mission." Additionally, soldiers
were instructed to "employ only such minimum force as is absolutely
necessary to detain a citizen," and were advised that "handcuffs, ropes,
blindfolds, or other physical restraints will be used only when neces-
sary to avoid flight or dangerous acts."43
General Farris' directives on war trophies and the treatment of
detainees provided clear guidance to the soldiers on Grenada and fur-
thered the goal of peacekeeping after combat operations ended.
Moreover, these two directives were the forerunners of the General
Orders no. .1 issued in subsequent contingency operations in Asia and
Africa.

Criminal Law
With the exception of several nonjudicial punishment proceedings con-
ducted under Article 15 of the Uniform Code, little criminal law was
practiced during the initial stages of URGENT FURY. Captain Walsh,
legal adviser to the 3d Brigade, one of the two 82d Airborne Division
brigades on Grenada, did inform the division staff judge advocate,
Colonel Richardson, however, that two incidents might possibly be
referred for court-martial at a later date, one for looting and one involv-
ing a noncommissioned officer's striking a more senior sergeant.
Consequently, Richardson requested that the division's chief of staff
deploy a defense counsel to Grenada on 29 October. A U.S. Army Trial
Defense Service attorney, Capt. Mark Winkler, arrived the next day.
Several other incidents were more serious in nature. One of these
occurred on the afternoon of 27 October, when the 3d Battalion,
325th Infantry, an element of the 82d Airborne Division, requested air
support against a suspected sniper position. The responding Navy air-
craft inadvertently fired on the 2d Brigade command post. Seventeen
soldiers were wounded, and one died. Captains Murray and Walsh
immediately began a preliminary investigation, obtaining names, tak-
ing statements, and recording other key information concerning this
friendly fire incident; the Navy would require this data in order to
conduct an investigation.44





JUDGE ADVOCATES IN COMBAT


Phase III, Stabilization, IS November-IS December

On 15 November 1983, Governor General Scoon, as head of the provi-
sional government in Grenada, declared an end to the State of
Emergency. The civilian government in Grenada was now able to func-
tion, although U.S. military and Caribbean Police Force elements were
asked to remain to assist in maintaining public order. This stabilization
phase ended on 15 December, when all U.S. combat troops departed
Grenada. The two principal legal activities occurring during this phase
were the negotiation of a Status of Forces Agreement and the continued
adjudication of claims.
A Status of Forces Agreement normally affords a military force and
its personnel certain forms of immunity from the criminal and civil jur-
isdiction of a host country, as well as exemption from its duties, taxes,
and immigration and customs laws. Prior to the U.S. intervention in
Grenada on 25 October, there existed, of course, no such agreement
regarding the United States and its military personnel. It was thus
essential that one be concluded as soon as possible. Although
Department of Defense and Department of State representatives nor-
mally negotiate such treaties, their absence from Grenada resulted in
Army lawyers' performing this function.
As early as 1 November, U.S. Ambassador to Grenada Charles A.
Gillespie contacted Army lawyers to inquire as to whether a Status of
Forces Agreement was actually needed. Under international law, a for-
eign combatant force engaged in hostilities does not require a Status of
Forces Agreement. At the conclusion of hostilities, however, a status
arrangement is generally required with any foreign force invited by a
host country to remain on its territory. Consequently, Ambassador
Gillespie tasked Major Hamelin with developing a draft status agree-
ment that would be effective both during and after the State of
Emergency proclaimed on 1 November 1983.
During the first week of November the U.S. embassy received a
message from the State Department in Washington, recommending a
prompt agreement on the status of American forces. The message
included a draft of proposed diplomatic notes that were to be
exchanged between the ambassador and the Grenadian governor-gener-
al, communicating a "waiver of jurisdiction" by the Grenadian execu-
tive. Major Hamelin modified the draft notes in order to provide cover-
age for civilian members accompanying the U.S. forces and their
dependents, and then had the proposed notes retyped. These notes
served as the basis for the Status of Forces Agreement when the State
of Emergency ended on 15 November 1983. Under this agreement, U.S.





GRENADA: ARMY LAWYERS IN TRANSITION


forces were specifically exempted from all forms of Grenadian duties,
taxes, charges, and levies, as well as from immigration and customs
requirements. Additionally, U.S. forces were accorded the same status
provided the technical and administrative staff of diplomatic missions,
a limited form of diplomatic immunity.45
During the stabilization phase, judge advocate efforts also concen-
trated increasingly on claims issues. By 12 December 1983, the claims
operation had received 420 claims and had approved 240 of these, total-
ing more than $241,000.46 Additional legal support during this period
came from Lt. Col. Paul Seibold, chief of the Foreign Claims Division
of the U.S. Army Claims Service. Seibold, who arrived on 15
November and departed on 23 November, reviewed the claims opera-
tion in Grenada and provided advice concerning the resolution of sev-
eral high-dollar claims.
When Major Hamelin returned to Fort Bragg at the end of
November, his work as a one-member commissioner was taken over by
Capt. John Hinton, an XVIII Airborne Corps attorney who had arrived
in Grenada on 28 November. Army claims personnel also worked with
the Department of State and the Agency for International Development
to obtain funds and to establish procedures to pay combat-related
claims not otherwise compensable under the Foreign Claims Act. By
late 1984 the United States had paid claims totaling nearly $2 million.47
In retrospect, Army lawyers recommended that a foreign claims
commission be appointed prior to a deployment. However small the
size of an operation, the claims function is important, manpower-inten-
sive work, and, due to the need for damage surveys, it requires at least
one mobile claims office. Another factor contributing to this recom-
mendation was the recognized need to have claims filed as promptly as
possible to ease the investigative process, which grows more difficult
with the passage of time. The ability of U.S. Forces, Grenada, to rapid-
ly establish a claims office and to broadcast its location and purpose
through civil affairs offices and local media such as Spice Island Radio
proved critical.48

Judge Advocate Activities at Fort Bragg, 25 October-15
December 1983
During URGENT FURY, Army lawyers at Fort Bragg focused on provid-
ing legal assistance to the family members of soldiers deployed to
Grenada. While this was a traditional legal function, the rapid nature of
the operation altered the tempo of the work dramatically. Much was
required, especially in the area of wills and powers of attorney. Colonel






JUDGE ADVOCATES IN COMBAT


Richardson estimated that his office prepared some 1,500 powers of
attorney and over 100 wills during the first seventy-two hours of
URGENT FURY.49 But, as URGENT FURY unfolded, the 82d's staff judge
advocate's office was simply overwhelmed by the volume of requests,
demonstrating the need for judge advocates to have units "Preparation
for Overseas Readiness-qualified" in advance of future operations.
Within twenty-four hours of alert notification on 25 October, Army
lawyers were participating in the newly opened Family Assistance
Center, a facility on Ardennes Street at Fort Bragg, manned twenty-four
hours a day. Judge advocates joined in family assistance briefings con-
ducted there, informing family members of the available legal advice
and how to obtain it. Army lawyers also contacted the branch manager
of the bank on Fort Bragg and advised him that family members with
powers of attorney would be negotiating soldiers' checks. As a result,
the manager briefed his employees on powers of attorney and directed
that any problems with transactions be brought to him immediately. He
would then call Maj. Richard Gasperini, the division rear staff judge
advocate, to resolve any difficulties.
Another area of judge advocate involvement was that of assisting
in the operation of the site used to store the privately owned vehicles of
deployed soldiers. Upon deployment, the 82d Division had implement-
ed a preplanned storage arrangement administered by the division adju-
tant general that involved parking more than 1,000 vehicles in an open
field. When these began to be vandalized, the division deputy staff
judge advocate recommended additional security measures for the pro-
tection of the stored property in order to reduce the number of possible
future claims. Later, when soldiers retrieved their vehicles, Army
lawyers had drafted a claims form and developed a claims procedure
that greatly accelerated the claims process.
Finally, the legal authority of rear detachment commanders, offi-
cers placed in charge of personnel and property left behind by deploy-
ing units, had surfaced as an issue. Their authority to take judicial, non-
judicial, and administrative action was greatly restricted,50 as Army
lawyers had determined that rear commanders were not legal "com-
manders" imbued with authority under the Uniform Code of Military
Justice. Prior to this issue's becoming a serious problem, however, the
redeployment of many units to Fort Bragg rendered it moot. Note was
made, nevertheless, that had the deployment to Grenada lasted a longer
period of time, Army lawyers would have been required to assist rear
commanders in obtaining the authority under the, Uniform Code of
Military Justice necessary to maintain good order and discipline in
their commands.5