Pierce did not acknowledge the admonition. He stood, and Tyson noticed that Pierce’s bright red hair was now military length, perhaps to make points with the board.
Pierce moved around the table and stood in the center of the floor where the altar had been. He faced the board, so that his profile was to Sproule and to the spectator section. He began, “President and members, the accused is charged with two specifications of murder under clause three of Article 118 of the Code. We are not charging premeditated murder, but we are charging that the accused, by his actions, engaged in, or allowed others to engage in, acts which showed a wanton disregard for human life leading to and causing mass murder.”
Pierce spoke in even, measured tones. “These murders took place nearly eighteen years ago. The victims in Specification One are unnamed, and I cannot give you their names. I cannot give you their ages, nor can I tell you how many there were of either sex. I can produce for you no bodies, no death certificates, no pictures, no graves. I can, however, produce two witnesses who can attest to these deaths.” Pierce paused in thought.
Tyson looked out at the pews. He realized that without a microphone, Pierce’s voice was not carrying well, but the effect was to make everyone strain to hear every word, and there was not even the sound of breathing from the hundreds of men and women out there.
Pierce continued, “In Specification Two we have names and ages and sexes. We have this information from the Catholic Relief Agency for whom these people worked at Miséricorde Hospital. These people, fourteen of them, according to that agency, simply disappeared one day during the Tet Offensive in the month of February, in the year 1968. They were never heard from again. Now we think we know what happened to them.”
Pierce paused again and turned his head toward Colonel Sproule, then glanced briefly over his shoulder and looked at Tyson. Pierce faced the board again. “In order for the government to prove a charge of murder against the accused, we must establish several connecting points: We must first establish that Lieutenant Tyson was in command of the platoon involved in this incident. We must establish that Lieutenant Tyson’s platoon was at Miséricorde Hospital on 15 February 1968. We do not have to establish that Lieutenant Tyson was physically present at the scene of the alleged murders, but we will do so. We will also establish that willful and wanton murder took place there. And we will establish that Lieutenant Tyson ordered those murders, or did nothing to prevent those murders, or conspired to conceal the facts of those murders from his superiors. It is not necessary to establish that Tyson himself committed any of those murders with his own hands; and in fact, the government will try not to establish that.”
Pierce looked at each member of the board. “As officers, you understand and appreciate the fact that Lieutenant Tyson, as the officer in charge of the body of men at Miséricorde Hospital, had the lawful responsibility to either anticipate, prevent, stop, or report the unlawful actions of his men. If the government can prove that he failed to carry out any one of his lawful responsibilities, then the law and Army traditions and customs clearly indicate that Lieutenant Tyson is guilty of willful and wanton murder.”
Colonel Pierce drew a thoughtful breath and went on, “I would like to draw to the attention of this court the Department of the Army’s own Law of Land Warfare. Specifically, Article 501, a copy of which will be submitted to the court. The article is headed ‘Responsibility for Acts of Subordinates’ and reads as follows.” Pierce quoted without reference notes, “‘In some cases, military commanders may be responsible for war crimes committed by subordinate members of the Armed Forces, or other persons subject to their control. Thus, for instance, when troops commit massacres and atrocities against the civilian population of occupied territory or against prisoners of war, the responsibility may rest not only with the actual perpetrators but also with the commander.’”
Pierce, still facing the board, half turned and pointed behind him to Tyson. “Lieutenant Tyson, as an officer, had direct knowledge of the Law of Land Warfare and in fact was required to instruct his troops in the provisions of this law. He carried with him at all times, as per MAC-V orders, a plastic card on which was printed a condensation of the Law of Land Warfare.” His voice rising, Pierce said, “This should have been a constant reminder to him, if indeed one was needed, that the massacre of unarmed, unresisting, and, in this case, sick and wounded nonbelligerents was a violation of the Law of Land Warfare, not to mention a violation of the Uniform Code of Military Justice and of the Geneva Convention. And it was also in direct contradiction to his training and to what he learned and was required to teach his men on the subject of the rules of engagement in Vietnam. In point of fact, as an officer and a troop commander, who had served ten months in Vietnam, the accused knew full well what his lawful responsibilities were in regard to command and control of his troops.”
Pierce moved a step closer to the board and said, “You members of the board, as officers, are fully aware that an officer with command responsibilities may commit a violation of the Code through the actions of his men, that an Army officer may commit murder without having personally murdered. That indeed, many of the most infamous and brutal acts of murder perpetrated by soldiers against civilians have been committed in the manner set forth in the charge and specifications.”
Pierce added, “The testimony you will hear should leave no doubt that the accused did in fact commit acts of murder as defined by the total body of military law, rules, regulations, customs, and the traditions of the officer corps. Thank you.” Pierce walked back to the prosecution table, glancing briefly at the spectators for the first time.
Colonel Sproule turned to Corva. “Does the defense have a preliminary statement?”
Corva stood behind his table. “Yes, your honor. And the defense will keep in mind the court’s instructions regarding such statements.”
“Proceed,” said Sproule.
Vincent Corva surveyed the court, then said, “The defense, in the interests of justice and keeping in mind that a trial by court-martial ought not to be a vehicle for obfuscating self-evident truths, has made several pretrial stipulations. The first stipulation was that Lieutenant Tyson was in fact the platoon leader of the first platoon of Alpha Company, Fifth Battalion of the Seventh Cavalry. The second stipulation we made was that his platoon was in fact engaged in operations in or about the area in question. We further stipulated that these operations led to an engagement in the vicinity of a building that was discovered to be a hospital or infirmary. We even went so far as to stipulate that, though no one at the time knew the name of this facility, we would be willing to assign it the name of Miséricorde Hospital for the purposes of this case. The fourth stipulation was that Lieutenant Tyson was present when the alleged events occurred. Therefore, the prosecution’s contention that it must establish those connecting points is in error. The defense has stipulated to those points, and any questioning of the witnesses that makes it appear to the court that the prosecution is uncovering new and incriminating truths would be . . . misleading to the court.”
Corva looked at Pierce for a moment, then continued, addressing the board directly, “At some length, the prosecution has appealed to you as officers to understand what you undoubtedly already knew: that an officer is responsible for his men.” Corva paused as though reluctant to pursue the point, then said, “I do not mean this in a pejorative way, but it is the sort of thing that an officer of the Judge Advocate General’s Corps might think it necessary for you to be reminded of, though you, as career officers in the mainstream of Army life, live that fact every day.”
Tyson glanced at the prosecution table and saw that Pierce’s face was quite red, though it wasn’t embarrassment that caused the interesting color, but anger. Tyson looked at the board, but again he saw nothing beyond the impassive expressions that are peculiar to juries.
Corva cleared his throat and said, “I had the honor of serving my country as a combat infantry officer in Vietnam. And during that time, I had
no difficulty remembering my duties or responsibilities or the rules of engagement or the Law of Land Warfare or that I was ultimately responsible for the actions of my men. I assure you that Benjamin Tyson as a combat leader knew his duties and responsibilities as well. Yet, the prosecution has asked you to keep all these things in mind as though they were the central issues for you to consider as you hear this case. However, the issue is not whether or not Benjamin Tyson was responsible for the actions of his men. He was. The issue is what did his men do.” Corva stroked the bridge of his nose in thought. “And,” he added, “what did Lieutenant Tyson do.”
Tyson suddenly realized that Corva had prepared no preliminary remarks; that Corva was extemporaneously rebutting what Pierce had said and was doing a fine job of it.
Corva again met the eyes of each member of the board. He said, “The prosecution has appealed to you as officers to understand the unique circumstances of command culpability and command responsibility. I appeal to you as soldiers—soldiers who have seen combat or have heard of combat from your fellow officers and from your men. I appeal to you to keep in mind that whatever you hear in this case, including the testimony of the defense’s own witnesses, is the testimony of an event that took place eighteen years ago. But more importantly, it is the testimony of an event that was seen through the eyes of men who had already seen too much of war. Through the eyes of men who were themselves confused and frightened. Through the eyes of men who were, at the time of the alleged crime, caught up in the heat of battle. It is the intention of the defense to show that whatever deaths took place at Miséricorde Hospital, including the deaths of two American soldiers, took place as a result of hostile action and hostile action only. But if the accounts of that action seem to differ, I ask you to remember your own war stories or those you have heard. I ask you to consider that when the soldier comes home, what he remembers is a fraction of what he forgets, and what he forgets is what he chooses not to remember. Ultimately, all war stories, all the war stories you will hear in sworn testimony, are as true as they are false. The details are as clearly remembered as they are fabricated. And the motive for all testimony is as noble as it is self-serving. Thank you.” Corva lowered himself slowly into his chair.
Colonel Sproule stared fixedly over the heads of the silent spectators. There was no movement in the chapel for some time, then Sproule looked at Pierce. “The prosecution may call its first witness.”
Pierce stood and turned to the sergeant at arms standing at the side altar door. “The prosecution calls its first witness, Mr. Richard Farley.”
CHAPTER
44
Richard Farley came through the door in a battery-powered wheelchair, guided by Sergeant Larson. Pierce himself moved aside the witness chair and indicated to Larson where to position Farley’s chair. The MP turned Farley toward the pews. Pierce said solicitously, “Is that all right, Mr. Farley?”
“Yes, sir,” replied Farley in a weak voice.
Corva grumbled, “Next comes ‘Are you comfortable?’”
Pierce asked Farley, “Are you comfortable?”
“Yes, sir.”
Tyson stared at Richard Farley, dressed in an ill-fitting blue suit, his hair long, and his complexion unhealthy. His trousers hung loosely over his wasted legs.
Colonel Pierce seemed to be trying to think of another solicitous question when Colonel Sproule said, “The witness will be sworn in.”
Pierce adjusted the floor microphone so it was closer to Farley, then said, “Please raise your right hand.”
Farley raised his right hand, and Pierce recited, “You swear that the evidence you shall give in the case now in hearing shall be the truth, the whole truth, and nothing but the truth, so help you God.”
“I do.”
Pierce said, “Please state your full name, occupation, and residence.”
Farley’s thin voice barely carried, even with the aid of the microphone. “Richard Farley . . . unemployed, and I live on Bergen Street in Newark, New Jersey.”
“Could you also please state your former grade and organization?”
“Yes . . . I was a pfc with Alpha, Fifth of the Seventh, First Air Cav.”
“What were your duties in this unit?”
Farley thought awhile, then replied, “I was a soldier.”
“A rifleman?” prompted Pierce.
“Yes.”
Tyson looked at Farley and said to Corva, “This is pathetic.”
Corva nodded.
Pierce asked, “Do you know the accused?”
“You mean Lieutenant Tyson?”
Pierce hid his annoyance and said patiently, “Yes, do you know him?”
“I did.”
“Will you, Mr. Farley, point to the accused and state his name?”
Farley looked at Tyson, pointed, and said, “Lieutenant Tyson.”
Tyson and Farley looked at each other for a moment, then Farley dropped his hand and turned away.
Corva stood. “Your honor, now that the dramatics are over, I wish to object. Pointing and naming are not necessary unless the question of identification is an issue.”
Colonel Sproule said, “Objection sustained. Colonel Pierce, you can omit that if you call additional witnesses.”
Tyson thought that Pierce had the chagrined look of a man who had tried to pull a fast one and got caught.
Pierce asked Farley a series of preliminary questions, and Farley seemed to be responding better as he got used to the format. Pierce said to Farley, “On the morning of the incident in question, before you reached the village of An Ninh Ha, did you see any Vietnamese civilians?”
Farley nodded before the question was finished, and Tyson knew they were into the rehearsed part of the testimony, though he didn’t know why Pierce would ask that question.
Farley said, “There was ’bout ten civilians on a burial mound.”
“What were they doing?” asked Pierce.
“Burying gooks.”
Pierce looked at Farley sharply, and nearly everyone guessed that Pierce had instructed Farley not to use this pejorative term. But, thought Tyson, a gook was a gook was a gook. He began to feel sorry for Farley.
Pierce said to Farley, “Did you approach these Vietnamese civilians?”
“Yes, sir.”
“Who approached them?”
“Me, the lieutenant, the lieutenant’s RTO, Kelly, and Simcox.”
“You, Lieutenant Tyson, Daniel Kelly, and Harold Simcox.”
“Right.”
“Can you tell us in your own words, Mr. Farley, what happened as you made contact with these ten Vietnamese civilians?”
“We never made contact with them. They were civilians.”
Pierce looked confused and tried to rephrase the question, then realized the problem was one of semantics and not the witness’s memory. “I meant contact in the sense of . . . you met them.”
“Yes, sir.”
“In your own words, Mr. Farley, tell us what happened.”
Tyson wondered whose words Farley would use if not his own. As Farley related the story of the burial mound, Corva whispered to Tyson, “What’s this all about?”
Tyson shrugged. “Beats me.”
Corva said, “Neither Farley nor Pierce mentioned this in our pretrial conference.”
“I barely recall the incident. I’m surprised Farley can.”
Farley continued his story, and Tyson leaned toward Corva. “I think I know what he’s getting at.”
Pierce said to Farley, “And it was Lieutenant Tyson who ordered these people to remove their clothes?”
“Yes, sir.”
“Was this common practice?”
“Well . . . sometimes. Not like this though. Usually it would happen in a hootch. The medic, maybe an officer. Maybe an older guy. A sergeant. One at a time. In a hootch.”
“But Lieutenant Tyson ordered them to strip there?”
“Yes, sir.”
“People of different sexes?”
“Yes, sir.”
“What happened next?”
“He told us to make them lay in the graves, then shoot them.”
Pierce straightened up, as though shocked and surprised. He looked briefly around the silent court, then turned back to Farley. “And did you?”
“No, sir. They hadn’t done nothing wrong except burying the . . . the NVA bodies.”
“No one complied . . . no one followed this order?”
“No, sir.”
“But you clearly heard Lieutenant Tyson give the order?”
“Yes, sir. He said something like ‘Make them lay in the graves and shoot them.’ The peasants got the idea of what was going on, and they got real frightened and started begging.”
Pierce delved further into this, then said, “So, after no one responded to the order, what happened?”
“Lieutenant Tyson told us to get going, and we went back toward the platoon.”
“Where were you heading?”
“I’m not real sure. But somewhere around Hue.”
“What was your mission?”
Farley shrugged. “Just get on to Hue. Marines were in heavy contact there.”
Pierce said, “Did you have as an intermediary objective the village of An Ninh Ha and/or the hospital there?”
“Yes, sir. The gooks at the grave told us about a hospital. Lieutenant Tyson passed the word that this was an intermediate objective. He told one of the men . . . I think Simcox, that there’d be broads there.”
“Women. At the hospital.”
“Right. And showers and hot chow. Everyone got real anxious to get there.”
“Did you have the impression that Lieutenant Tyson meant to commandeer this hospital?”
“Well, I guess so. We usually took what we wanted.”
“And you’re quite sure that Lieutenant Tyson and everyone knew they were headed toward a hospital?”
“Yes, sir. Like I said, we couldn’t wait to get there. But once we got there we wished we never went.”