30 May 2001

Marines Obey The Law

Major Anthony F. Milavic, United States Marine Corps, (Retired)

During the 1960s and ‘70s, protesters accused Vietnam veterans of being “war criminals,” “baby killers,” “murderers,” etc. Those accusations have been resuscitated by allegations recently directed at, ironically, a Vietnam veteran and war protester, former Senator Bob Kerrey. This irony is furthered by his namesake, fellow U. S. Navy Vietnam veteran and leader of Vietnam war protesters, Senator John Kerrey of Massachusetts, who has joined a raft of pundits to suggest that Bob Kerrey’s alleged actions were widespread standard policy if not lawful for the killing fields of that war: they were neither standard policy nor lawful for Marines in Vietnam.

 The following summary of facts and allegations on this incident were published in the New York Times Magazine article of 25 April 2001 “One Awful Night in Thanh Phong” by Gregory Vistica and the complementary “60 Minutes II” broadcast of 1 May. On the night of 25 February 1969, Bob Kerrey led a 7-man SEAL team on a mission to kill or capture a Viet Cong “village secretary” at Thanh Phong hamlet in Vietnam's eastern Mekong Delta.  In route to that hamlet, the team came upon a single “hooch” where it is alleged that they killed, with knives, an old man, an old woman and three young children; the most experienced member of Kerrey’s team, Gerhard Klann, and a surviving Vietnamese villager agree on these elements of the allegation. Conversely, Kerrey says that he was told that the occupants were four men and that he, the team leader, did not give the order to kill these people; he added, however: “Standard operating procedure was to dispose of the people we made contact with. Kill the people we made contact with, or we have to abort the mission.” Nevertheless, all concur that: the team had received no fire up to this point; the occupants of the hooch did not threaten the team with bodily harm; and, no weapons were found in the hooch. Also, Kerrey calls those killed there, “innocent civilians.” In the interest of brevity, I will not comment on the allegations surrounding the team’s action at the subsequent group of hooches it encountered on this patrol.

Well, having served with Marine ground and air units in Vietnam during 1964, 1967, and 1968-69, I can say that: It might have been Standard Operating Procedure (SOP) for SEALS in Vietnam to kill “innocent civilians” that they “made contact with”; it was NOT SOP for the Marines that I served with before Kerrey got there, while Kerrey was there, and after Kerrey left there. The term “innocent civilian” should be self-explanatory; in Vietnam, Innocent Civilian was a generic term meaning someone who did not wear a uniform, did not carry a weapon, and did not belong to a VC or NVA unit. If unarmed non-threatening persons were encountered in one of our operations and the Innocent Civilian determination could not be made by the tactical unit, they were to be treated as “Detainees” and evacuated under the protection of the Geneva Convention. This protection is also based on the principles established in the 1940s at the Nuremberg war crimes trials: Walter Rockler, a semiretired lawyer in Washington who was a prosecutor at Nuremberg, says, "The basic rule is that in enemy territory you don't kill civilians, particularly unarmed civilians." The expressed, taught, and enforced policy for we Marines was that Marines do NOT kill Innocent Civilians. In lay terms, the intentional killing of an innocent person is contrary to the Nuremberg principles, the Geneva Convention, the Law of Land Warfare, the Uniform Code of Military Justice, U. S. Criminal law and even the Bible and the Koran--such an act is called, “murder.”

Am I suggesting that none among us broke these laws? No. Between 1965 and 1973, reportedly, 77 Marines were convicted of serious crimes against the Vietnamese, crimes that included the killing of Innocent Civilians. The point is: Marines recognized that killing Innocent Civilians was against the law and when one among us was alleged to have broken that law, he was investigated and, if the evidence warranted it, he was prosecuted!

Again, what I am talking about is the INTENTIONAL killing of Innocent Civilians. Some pundits have compared the Kerrey allegations with civilians killed as a result of “the fog of war,” artillery fire or air-strikes that went awry or civilians killed while in close proximity to combatants. These comparisons are not valid. Killing someone with a knife falls in the category of “up close and personal” and belies any excuse that you didn’t know who you were killing. In calling these victims “innocent civilians,” Kerrey demonstrates that he knows who they were. 

Collectively, Marines constitute a Corps created and nourished to “protect the Constitution of the United States from all enemies, foreign and domestic.” That duty comprehends the law of the society the Corps serves and is emboldened by the motto of Marines, “Semper Fidelis.” Speaking to non-commissioned officers at Parris Island, S. C. in August 1956, the Marine, Lt. Gen. Lewis B. “Chesty” Puller, reminded us all: “Do your duty and the Marine Corps will be as great as it always has been for another thousand years.” Marines serving in Vietnam remembered that charge and did their duty. Yet, on returning home, Vietnam War protesters called us “murderers” and the Kerrey allegations tend to reinforce that affront to our integrity. Now as then, the response is clear: Marines obey the law, murderers do not!