• , , , <. ". sou T H CHI H A VIETNAM STUDIES LAW AT WAR: VIETNAM 1964-1973 by Major General George S. Prugh DEPARTMENT OF THE ARMY WASHINGTON, D.C., 1991 Library of Congress Catalog Card Number: 74-31399 First Primed 1975-CMH Pub 90-14 For Sille by lhr Superintrndrnt ofOocumrnu.. U.S. Governmrm Printing Officr WUhington. D.C. 20402 Foreword The United States Army has mel an unusually complex challenge in Southeast Asia. In conjunction with the C'ther services. the Army has fought in support of a national policy of assisting an emerging nation to develop governmental processes of its own choosing. free of outside coercion. In addition to the usual problems of waging armed conflict, the assignment in Southeast Asia has required superimposing the immensely sophisticated tasks of a modern army upon an under developed environment and adapting them to demands covering a wide specttum. These involved helping to fulfill the basic needs of an agrarian population, dealing with the frustrations of antiguerrilla operations, and conducting conventional campaigns against well trained and determined regular units. Although this assignment has officially ended, the U.S. Army must prepare for other challenges that may lie ahead. While cognizant that history never repeats itself exactly and that no army ever profited from trying (0 meet a new Challenge in terms of the old one, the Army nevertheless slands to benefit immensely from a study of its experience. its shortcomings no less than it.. achievements, Aware that some years must elapse before the official histories will provide a delailed and objective analysis of the experience in South east Asia, we have sought a forum whereby some of the more salient aspet::ts of that experience can be made available now. At the request of the Chief of Slaff, a representative group of senior officers who served in imporlant posts in Vietnam and who still carry a heavy burden of day-to-day resp:msibilities has prepared a series of mono graphs. These studies should be of great value in h~lping the Army develop future operational concepts while at the $arne time contrib uting to the historical record and providing the American public with an interim report on the performance of men and officers who have responded, as others have through our history. to exacting and trying demands. The reader should be reminded that most or the writing was accomplished while the war in Vietnam wa~ at it~ peak, and the monographs frequently refer to events of the past as if they were taking place in the present. All monographs in the series are based primarily on official rec ords. with .additional material from published and unpublished sec- ondary works, from debriefing reports and interviews with key participanu. and from the personal experience of the author. To facilitate security clearance, annotation and detailed bibliogrnphy have been omitted from the published version; a fUlly documented account with bibliography is filed with the U.S. Army Center of Military History. Major General George S. Prugh graduated from Hastin~ College of Law. University of California. in San Francisco in 1948 and reo ceived the degree of Juris Doctor. He is a member o[ the bar of the s[ate of California. General Prugh is a graduate of the Command and General Staff College and the U.S. Army War College. He received the degree of Master of Aru from George Washington University in Washington. D.C .• in 1963. General Prugh is particularly well qualified to author this mono graph on judge advocate activities at Headquaners, U.s. Military Assistance Command. Viemam. In November 1964 he became the Staff Judge Advocate at the Military Assistance Command. and served in that capacity on an extended tour until July 1966. General Prugh's assignment in Vietnam coincided with the years which have been deKTibed by General Westmoreland. Commander. U.S. Military Assistance Command. Vietnam, as the year of crisis. 1964; the year of military commitment. 1965; and the year of development. 1966. Following his tour in Vietnam General Prugh assumed the duties of legal adviser to the U.S. European Command in Saint·Germain. en·laye. France. and later at Stuttgart, Germany. On I' May 1969, he became the Judge Advocate, U.S. Army Europe and Seventh Anny. at Heidelberg, Germany. He was reassigned to the Depart. ment of the Anny, Washington. D.C .• in June 1971. and assumed the position of The Judge Advocate General on I July 1971. Washington, D.C. VERNE L. BOWERS iO September 1974 Major General, USA The Adjutant General iv Preface The laws of a nalion fonn the most instructive portion of its history .... EDWARD GIBBON The American people have a special relationship with their law. While they themselves loudly criticize it as too slow, often archaic. and usually inadequate. they are at the same time devoted to its extra ordinarily high legal principles-principles of fairness, openness, and justice frequently talked about by other peoples but rarely observed in actual daily practice to the extent that they are in America. The American people take their law with them. insofar as they are able. and they find it difficult to accept when other nations do not see jwtice in the same light they do. That war affects law is nOl apparent to many Americans, who are so used to peace at home, where their COUTts continuously function, that it is very hard for them to visualize how combat interferes with the legal process. It will surprise no serious student of American affairs to learn that from the beginning of American participation in the Vietnam War- there was a substantial presence of American law and legal insti· tutions in the company of U.S. forces the.e. This presence of U.S. law had effects during American participation and after, some of them only dimly seen at this time because we are so close to the event. The purpose of this monograph is to describe the presence of law at a particular time and in a particular American command in Vietnam. I have selected the U.S. Military Assutance Command, Vietnam, as the headquarters, and the crucial yean of 1964 through 1966 as the primary but not exclusive period of time to study, partly because as the senio.legal officer, the Staff Judge Advocate at Military Assistance Command, Vietnam, then, I was most familia. with events, but in the main because it was in that headquarters and at that time that basic policy positions we.e formed. It was early apparent that law could have a speciallOle in Vietnam because of the unusual circum· stances of the war, which was a combination of internal and external war, of insurgency and nation-building. and of development of in digenous legal institutions and rapid disintegration of the remnants of the colonial French legal establishment. Fu.ther, the Vietnamese people were eager fo. knowledge of American institutions. including law. v To describe the events, the interplay, the considerations, and the immediate results of U.S. legal activities in the Military Assistance Command. Vietnam, has proved a large task. Any treatment of the conduct and discipline of the U.S. Army, Vietnam, a subordinate command, has been omitted as not a direct pan of the law work of the Military Assistance Command. Similarly omitted is a detailed discussion of the tragic action at My Lai (Son My), which beclouds the record of the many well-led-and legally conducted-military operations. Except for brief remarks in passing, My Lai is omiued for several reasons: it has been widely publicized, it occurred about two years later than the primary period this monograph deals with, and it was the legal responsibility of the service component, U.S. Army, Vietnam, as distinguished from the unified command headquarters, Military AssisL.1nce Command, Viet nam, which is the focus of this monograph. Upon receiving the assignment to the MiliL1ry AssisL.1l1Ce Com mand, Vietnam, in the rail of 1964. I framed two guiding questions. Fint. what must be done to assure that the command's activities were performed in a manner conforming to applicable Jaw, national and international? Second, in what manner could law and legal inStitu tions be properly used to (urther the accomplishment of the com mand's mission? Th~ questions led directly to the requirement to find Out how the Jaw was actually working-and this meant an early identification of the law that was being applied and its source. For our command's activities this was difficult only in the area of international law. The so-called Pelllaialerai Agreemelll, referred to in some d,etail in the following text, served as a framework for dealing with legal issues arising between U.S. military personnel and the people and legal institutions of the Republic of Vietnam. This agreement was a bare bones one, however, and much interpretation and practice would be needed before we could be sure the needs of the command and the desires of the host country could be simultaneously met. Most difficult for us, however. was to determine applicable inter national law, for much depended upon the legal characterization of the conflict and the American role in it. The traditional tests of in ternal conflict in contrast to an international conflict were clearly tOO imprecise in this situation where the country of Vietnam had been divided, purportedly temporarily, by the Geneva Accords of 1954, and both portions of the country claimed sovereignty and had re ccived somc supporting recognition. There were aspects of a civil war within South Vietnam and equally valid aSJ>Ccts of invasion by reg ular troops from North Vietnam; Free World forces were present at the invitation of the government, assening the sovereignty of South Vietnam. Attacks on these Free World forces were made by "indig enous" Viet Cong and "foreign" North Vietnamese troops; the line between civilian terTori~lS and the military insurgents was so blurred as to be indistinguishable; and almost all of the traditional measures -uniform, organization, carrying of arms openly-failed to identify the combatants. Clearly we had a lot of loose ends to pick up before we could be certain of the legal positions we should advocate. and we had few precedents to guide us. The second question brought us much more quickly and dra matically into the search for Vietnamese law. One fact became abun dantly clear; we knew very lillie about Vietnamese law and how it actually worked. Nominally it was a derivative of the French civil law system, blll in practice this law is not what impacted on the bulk of the population, at least outside of the three or four largest cities. The military services had developed a variation of the French sys tem, but it was made unique by the various decrees that had been issued since the establishment of the Republic of Vietnam. Notwith standing what the law was said to be, it was evident that what was actually being applied was frequently far different. To learn these facts, then, became a first priority and led to the formation of a division in the MACV Staff Judge Advocate's office of field ad visers, military lawyers who would assist their Vietnamese counter parts in the field and would at the same time gather as much infor mation as possible about the law system's actually working. The emphasis of this monograph upon one law office perforce leaves unrecounted the story of the often dramatically impressive accomplishments of the substantially larger number of Army, Navy, and Air Force judge advocate personnel who performed legal ser vices for subordinate commands within the Republic of South Vietnam. The task of reconstructing the scenes in which the Military As sistance Command, Vietnam, judge advocates played a part was formidable. A debt of gratitude, therefore, is owing to my colleagues in the law who have contributed to the preparation of this mono graph and to those many friends who have read all or parts of this manuscript and provided constructive suggestions. I wish to express my appreciation to Colonel Nathaniel C. Kenyon, Major Paul P. Dommer, and Captain Robert E. Deso, who, while members of my office, were project officers for this monograph. They assembled the materials and did most of the writing. This study can touch on only a few of the highlights of the excit ing period described, but it is my intention that it accurately reflect vii the fact that at that time, in troubled Vietnam, military lawyers o{ America and Asia lirted the lid and looked, albeit brieRy, at what law and iu institutions can do (or a country engaged in a modern armed conRict. This was activism in the law, and activism of high order. For having had an opportunity to participate in lhis activism at this time and with these people, I shall be eternally grateful. Washington, D.C. GEORGE S. PRUGH 10 September 1974 Major General, USA The Judge Advocate General Vllt