Justice lag

As William Calley, who bore the blame for the massacre at My Lai, makes his first public apology, the eight Marines accused of the most serious crimes in Iraq look likely to walk free, Allison Hoffman reports. The Kiwanis Club of Greater Columbus, Georgia - a city hard by the Alabama state line - is the sort of place where men gather to hear lunchtime presentations on subjects like the need to increase support for public libraries. It is not, in other words, a place accustomed to making news, even in the local paper, which may be why former lieutenant William Calley, the only man convicted in the brutal 1968 massacre of more than 300 Vietnamese civilians by American soldiers in a raid on the small hamlet of My Lai, chose it as the venue for his first public apology, 40 years after the fact.

There wasn't any advance notice, just a brief announcement at the start of the August 19 lunch that Calley, who has lived in relative anonymity since his release from Army custody in 1974, had a few words to say. "There is not a day that goes by that I do not feel remorse for what happened that day in My Lai," Calley began, according an account published in the Columbus Ledger-Enquirer. When the floor opened for questions, one person asked whether Calley thought what he had done was illegal, even if he believed he was just following orders, as he had maintained in court. "I believe that is true," Calley responded. "If you are asking why I did not stand up to them when I was given the orders, I will have to say that I was a second lieutenant getting orders from my commander and I followed them - foolishly, I guess." It was, at this late date, a striking admission from the man who became the living embodiment of the American morass in Vietnam - but one that, perhaps, meant more to Calley, now 66 and graying, than to his country.

As it happens, a few days after Calley's address, a Marine lieutenant general in California announced that the government would abandon its efforts to prosecute all but one of the men charged in the biggest criminal investigation of the Iraq war - into the killings of 24 civilians in Haditha, widely characterized as a contemporary analogue to My Lai. The two dozen people killed on November 9, 2005, allegedly in retaliation for a roadside bomb that killed one Marine and wounded another - represent only a fraction of the body count at My Lai, and with no allegations of the extreme abuses that characterized the killing spree in Vietnam. But in both cases, initial military reports described successful missions, and it took the work of whistleblowers and journalists to reveal very different facts: the apparently wanton killings of unarmed civilians - old men, women, children - by emotionally unhinged American troops engaged in an unpopular war of choice, half a world away from home.

Each story, in fact, seemed to represent a turning point in the domestic narrative of their respective wars, emerging at times when many Americans - even those initially in favor of going to war - were hungry for evidence to support their growing sense that the logic of the war had come, in some essential way, undone. After My Lai, when comparisons began to be drawn to German atrocities against Spanish republicans at Guernica or French villagers at Oradour-sur-Glane, the parents who had fought those wars could not imagine how their own sons had become capable of similar savagery. "I raised him as a good boy, and they made a murderer out of him," railed Myrtle Meadlo, whose son Paul was among Calley's men, to Time magazine in November 1969, in an article headlined "An American Tragedy."

Nearly four decades later, Haditha turned a spotlight on the impossibility of conducting a just war in a place where civilians and combatants were often indistinguishable - and where the deaths of ordinary Iraqis had become so commonplace as to blur the line between deliberate killing, reckless application of force, and sheer accident. Coming on the heels of the revelations about abuse at Abu Ghraib prison (exposed, perhaps not coincidentally, by Seymour Hersh, the same journalist who broke the My Lai story), Haditha became the best example yet of how a country that had vowed to learn the lessons of Vietnam was making the very same mistakes in Iraq.

Even as both cases raised questions about the general prosecution of the war - questions that ran up the chain of command to the Pentagon and the White House - the military had only one tool with which to respond: the court-martial. Congressional hearings, investigative inquiries, national soul-searching - all of that is, in military parlance, well above the pay grade of those charged with meting out some sort of justice, even in cases where genuine justice might simply be an unattainable goal. "How do you apologize for that sort of thing?" asked Gary Solis, a retired Marine Corps judge advocate and former head of West Point's Law of War program, who has written extensively on war crimes in Vietnam. "But when there's evidence of criminality of this nature it seems to me that the nation has a duty to see [the court process] through, and take these guys to trial."

When Seymour Hersh, then freelancing for the Dispatch News Service, published his bombshell report on November 12, 1969, William Calley had already been charged with six counts of premeditated murder for the deaths of 109 "Oriental human beings, whose names and sex are unknown, by shooting them with a rifle," according to the charging documents. The actual investigation had actually started months earlier, after a discharged soldier finally caught the attention of two members of the House Armed Services Committee with a series of letters alleging that My Lai had been the site of a massacre and not a "bloody day-long battle", as it had originally been described in Stars and Stripes, the Army newspaper. Calley's trial would have been a quiet affair, until Hersh's report guaranteed the press would descend on the proceedings, at which point a new, more public investigation commenced Ultimately, 26 men - including 14 officers accused of abetting a cover-up - were charged. Calley, the first to face court-martial, was the only man convicted, in March 1971. By the time his immediate superior, Captain Ernest Medina, was acquitted five months later, public interest had already declined markedly. "What did they want," the writer Mary McCarthy wondered at the time, "mint-fresh atrocities, in preference to stale ones?"

The Haditha prosecutions, by contrast, would not even have taken place if not for an Iraqi human rights group that provided Time reporter Tim McGirk with video in March 2006 that contradicted the Marines' initial account of what had happened. In short order, the military launched two separate probes; a record number of naval investigators were put at the disposal of prosecutors, and ordered to file duplicate copies of their reports for briefing to members of Congress.

Nonetheless, charges were slow to come, in part because the Marine commandant decided to wait for the initial investigations to be completed before starting court-martial proceedings. It was not until December 21, 2006 - four days before Christmas, when Southern California's palm trees were already strung with lights and everyone was angling to get out of town - that the Marine Corps started the wheel of justice turning. Criminal charges were filed against four enlisted men, for premeditated murder in the killings of some of the victims, along with an array of lesser murder, assault and false-statement charges. Sergeant Frank Wuterich, then 26 and the most senior enlisted man involved in the shootings, faced the gravest charges, a total of 18 counts of murder for the deaths of members of the Ahmed, Alzawi and Salim families. Four officers, including a lieutenant colonel, Jeffrey Chessani, were charged with failing to report or investigate the killings.

At the time, a Haditha resident named Naji al Ani told the Associated Press the troops should face justice in Iraq - "The trial they are talking about is fake," the 36-year-old laborer insisted - but for Americans, still fresh from having turned the Republican majority out of Congress in the November 2006 midterm elections, the charges felt like a first step toward resolution. "The fact that there was a formal process for examining those allegations means there's a system that is transparent, that the world can look at and see," Tom Umberg, a former Army prosecutor now in private practice, told me earlier this year. And, clearly, the Marine Corps wanted the world to see. The Corps spent more than $1 million to turn a low-slung, two-storey building at Camp Pendleton, near San Diego, into a media centre, in preparation for the camera-toting hordes expected to attend the Haditha prosecutions. I covered the proceedings for the Associated Press - alongside reporters from the New York Times, the Washington Post, and the Los Angeles Times, and crews from the BBC, CNN, NPR and the three American television networks, along with Reuters, AFP and various other wire services and outlets, all of us churning out a raft of front-page stories about the charges.

But what was to be a great display of military justice has since come very much unglued. At least a few of the men charged alongside Calley went to trial and were formally exonerated; in the Haditha case, charges have simply been dropped. Nearly four years later, only Wuterich faces any legal accountability. Of the eight Marines originally implicated in the case, only one, an intelligence officer charged with ordering photographs of the carnage to be deleted, has gone to trial. He was acquitted after refusing a plea deal. Two other Marines were apparently cleared in order to encourage them to testify in other cases; charges against the rest have been dropped.

"My Lai and Haditha are simply not comparable, but what is comparable is that military justice comes out looking bad," said Solis. "To say that it was a miscarriage of justice may be correct, but perhaps a better characterization would be something like a failure of justice." If Wuterich goes to court-martial, it will be on nine charges of manslaughter and two of assault, along with dereliction of duty, obstruction of justice and reckless endangerment - serious, but a long way from the 18 second-degree murder counts he initially faced. His case has been frozen for more than a year while prosecutors have pursued appeals to obtain unaired footage from a television interview with Wuterich - a strategy that hardly suggests a rush to justice. Lt Col Colby Vokey, who served as Wuterich's military defense attorney until retiring last year, said his team had been prepared to begin Wuterich's court martial in March 2008. "We were supposed to haul back from Iraq, where we were deposing some witnesses, because that trial was supposed to start, and a year-and-a-half later we're still not in trial," said Vokey, who is now in private practice in Dallas. "I can't understand it - I think if I was a prosecutor, I wouldn't have made that decision."

Vokey has been a vocal critic of the Haditha prosecutions, precisely because of the apparent effort by prosecutors to concentrate guilt on one person - namely, Wuterich - in a case where everyone up and down the line had a hand in creating the circumstances that led to the senseless deaths of two dozen Iraqis, most in their own homes, yet another echo of My Lai. "I think there was pressure up and down the chain of command not for a particular result, but for the thing itself"- for a trial, Vokey said.

At this point, he added, it's unlikely that Wuterich will face court-martial before the end of the year, and as time goes on it becomes increasingly possible to imagine that he, too, could be let off the hook. If, or when, a trial eventually proceeds, it will be in a courtroom tucked somewhere among Camp Pendleton's beige administrative buildings, untelevised and off-limits to anyone armed with more than pen and paper. (Cell phones and laptops - anything capable of sending live data - are not permitted inside the courtrooms.)

In 1971, when the Calley verdict was delivered, a poll conducted by the Nixon White House found that 96 per cent of Americans were aware of the news - the highest score for any subject they had polled, according to HR Haldeman, Nixon's chief of staff. A novelty record called The Battle Hymn of Lt Calley that depicted the convicted murderer as an American hero sold more than 200,000 copies in a week and "caused fights in bars" across the United States.

Whatever Wuterich's legal fate, it's likely that he'll be spared such notoriety - unlike Calley, he will not be made to represent, rightly or wrongly, the guilt or innocence of an entire war. He will be spared taking the burden of remorse, not just for his company, but for his country - and at some future date, there may not be anyone to stand before some other group of Rotarians or Elks to say they're sorry.

Allison Hoffman, formerly a reporter in the San Diego bureau of the Associated Press, is now senior writer at Tablet Magazine.