Pod Insights American Scandal The Massacre at My Lai | Interview | Rules of Engagement: How My Lai Changed the US Military | 5 About this episode On March 16, 1968, American soldiers carried out what remains one of the most brutal war crimes in U. S. history. Over the course of a single morning, they killed between 300 and 500 Vietnamese civilians. The My Lai Massacre stands as a lasting stain on the U. S. military’s legacy, but one that, according to Fred Borch, has also led to important reforms. Borch is a retired Army lawyer and former regimental historian for the Judge Advocate General Corps. He joins Lindsay to discuss the legacy of My Lai, the failures that made it possible, and what’s changed in the decades since.
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0:00 Lindsay Graham? Audible subscribers can binge new seasons of American Scandal early and ad-free right now. Join Audible in the Audible app or by subscribing on Apple Podcasts.
0:21 Lindsay Graham? From Wondery, I'm Lindsay Graham, and this is American Scandal.
0:44 Lindsay Graham? On March 16th, 1968, American soldiers entered the Vietnamese hamlet of My Lai. What followed was one of the most horrifying war crimes in U.S. history. Hundreds of unarmed civilians, men, women, and children were gunned down in cold blood. Some were raped. But instead of confronting this atrocity, military leaders tried to bury it, and for more than a year, they succeeded. When the truth finally came to light, it shocked the world and raised a disturbing question: How could the United States Army allow something like this to happen? And yet, despite the fallout, only one man was convicted of a crime, while dozens more went free. My guest today is Fred Borch, a retired Army lawyer and regimental historian of the Judge Advocate General Corps.
1:27 Lindsay Graham? He's written extensively about how My Lai shaped military justice, and today, we'll explore how the U.S. military confronted the legacy of this massacre and whether the lessons it claimed to learn still hold up more than 50 years later. Our conversation is next.
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2:39 Lindsay Graham? Fred Bork, welcome to American Scandal.
2:41 Speaker 03 Happy to be here.
2:42 Lindsay Graham? So you have said that My Lai nearly wrecked the US Army. What did you mean by that?
2:49 Speaker 03 Well, I think if you put it in the context of the time, the country was increasingly opposed to the war in Vietnam. And if you remember your history, the Tet Offensive of January 1968 was a real shock to Americans. Walter Cronkite on CBS News was telling Americans that 500 soldiers had been killed in that week alone in the Vietnam War. And Americans had been told by Lyndon Bades Johnson and the Pentagon that we were winning the war, but it looked as if we were in fact losing the war.
3:30 Speaker 03 So by the time the American people learn about what happened at My Lai, this horrendous war crime, there was so much anti-war feeling, which it translated into anti-army feeling, that morale in the army just hit rock bottom. Particularly after photographs in color of the murders at My Lai were published in Life magazine. This was an unbelievable shock to Americans. They'd never seen anything like this before. And in those days, as you probably know, or your listeners know, Life magazine was in everybody's household.
4:10 Speaker 03 So when I say My Lai nearly wrecked the army, I'm saying that the war crime was so shocking that it really hurt the reputation of the army among the American people.
4:21 Lindsay Graham? So we know that there were many failures that led to the My Lai massacre. Poor training and leadership, low morale, flawed intelligence, and of course racism. What would you say are the most critical of these factors?
4:34 Speaker 03 Well, certainly, the number one factor is poor leadership, as epitomized by William Kelly, who was a substandard leader, should have never been commissioned as an officer. But again, at the time, we were so short of smart young men, in this case, to be leaders, that Kelly was commissioned. And I think that the real failure at My Lai, sure, there were many, was leadership. A better leader would have made sure that this war crime had not occurred, because you cannot, you may not, you should not kill unarmed and unresisting civilians.
5:17 Speaker 03 But Kelly was the one who ordered his men to open fire and to kill them.
5:22 Lindsay Graham? So I suppose we have to delve into what the rules of engagement are? What orders are legal to follow or not? At the time of My Lai, what were the frameworks that governed how US soldiers were supposed to behave in combat situations? And I guess, how did the Army distinguish between a war crime and a lawful order?
5:41 Speaker 03 Well, during the Vietnam War, the law that applied was the Geneva Conventions of 1949, and those had been in effect since after World War II. And certainly, we taught soldiers that they needed to make sure they only targeted the enemy, don't harm civilians. If you have to launch an attack, try to reduce collateral damage, that is, injury to unarmed civilians. But that was pretty much all there was. Today, we have what we call rules of engagement, and those are the commander's rules for how force may be used.
6:25 Speaker 03 We didn't have that back during the Vietnam era. And consequently, I think one of the problems at My Lai is that soldiers really weren't sure How they should use force. Now, if we're talking about war crimes, some war crimes are pretty easy to figure out. You can't kill prisoners of war. You shouldn't be shooting at unarmed or unresisting civilians. And then if we're talking about lawful orders, well, if a lieutenant ordered a soldier to kill a prisoner of war, every soldier should know that that's an illegal order. But what about an order to shoot at a Vietnamese civilian
7:07 Speaker 03 who's taken off running as soon as he sees you in a rice paddy? Is that a lawful order? Is that person running away an enemy or a civilian? So I think these are more complicated issues, particularly in Vietnam. And let me also add that during this era, we also had what we called free fire zones. And the idea was that you would clear a particular geographic area of the enemy, or so you said, and then you told your soldiers, you may fire on anyone who's in that area because it's a free fire zone. You can assume that
7:48 Speaker 03 anyone who's there is in fact the enemy. This was a big mistake because often you'd end up killing civilians who either didn't realize they were in a free fire zone, or simply had bad luck to be there. But the bottom line is, we did have the Geneva Conventions, but other than some rudimentary classes, we didn't do much in the way of training or education on obeying only lawful orders.
8:16 Lindsay Graham? And of course, in Vietnam, as you hint, the situation was difficult. The Vietcong, they often blended in with the civilian population. They didn't wear uniforms. You mentioned these free fire zones, but how else did the US Army prepare for the reality of guerrilla warfare?
8:32 Speaker 03 The answer is not very well at all. And in fact, this is a very frustrating situation for any American soldier. Because unlike World War II, where the enemy wore a uniform, or the Korean War, as you say, there's no way to really tell who the enemy is. At least when you're talking about the Vietcong. The North Vietnamese, a professional armed force, they wore uniforms. But if you're talking about combatants in South Vietnam, the Vietcong are wearing black pajamas, and they're farmers by day, and they're guerrillas by night. So it's almost impossible for a soldier to know, an American soldier to know,
9:15 Speaker 03 if this military-age Vietnamese man is actually Vietcong. And I think as a general rule, although we didn't talk about it at the time, the issue would be, is the person demonstrating some hostile intent? If you saw a farmer carrying a weapon, an AK-47, well, you might assume that that person is the enemy. But I've seen more than a few cases where a young Vietnamese male would simply start running away. And the conclusion by the Americans was, well, only the enemy would run away, so let's open fire. And the result was, of course, not good,
9:58 Speaker 03 because you're not really sure that you're engaging the enemy. So to go back to this free-fire zone, this was one of the solutions they came up with. They said, "Well, it's too hard to identify whether or not someone's the enemy, so let's just say we're going to have this geographic area, and we're going to tell the Vietnamese, 'Stay out of here, or don't be out after a particular curfew, and then if we see somebody, we can assume that's the enemy.'" So that was one way to fix it, which I think in retrospect was a big mistake.
10:32 Lindsay Graham? In thinking about conflicts subsequent to Vietnam, they often resemble Vietnam more than they do World War II. I'm thinking of our engagements in the Middle East and Afghanistan. Has the military gotten any better at distinguishing between civilians and the enemy?
10:47 Speaker 03 Well, of course, you are exactly right. We have not had this sort of nation-on-nation conflict really since the Korean War. All right, you could certainly include the North Vietnamese. But in Afghanistan, for example, how were you able to distinguish between an Afghan civilian who's simply going about his or her business and the Taliban or Al Qaeda? And so what the American military has done is said, okay, we're going to have rules of engagement. And one of the rules would be that you may not engage, say, in this case, an Afghan unless that Afghan shows some sort of hostile intent. And the hostile
11:32 Speaker 03 intent would be carrying a weapon, aiming that weapon at you, or otherwise indicating that he was a combatant. So the answer is, yes, we are doing better, but it's still difficult if you're in that situation where the enemy, if you want to call him that, doesn't follow the same rules that we do, which means doesn't wear a uniform or have insignia of rank or any of these sort of things. So we are doing better, but it's still very difficult. And like anything, Lindsay, war is messy. People make mistakes. Accidents happen. And so even if you think someone's showing hostile intent and you
12:17 Speaker 03 engage them, well, maybe you make a mistake. It's just hard to know.
12:21 Lindsay Graham? So it sounds like these rules of engagement are there to assist the army and the individual soldiers to decide what is proper conduct in a conflict zone. And this is probably one of the central questions. What orders can soldiers disobey? What does military law say about that?
12:38 Speaker 03 In general, military law, or the law of armed conflict, says that you can only use force.
12:46 Speaker 03 If it's required by military necessity, which means that you need to take the action to defeat the enemy quickly and efficiently, that's the first principle. And then the second principle we talk about, and this is what we tell soldiers, is distinction. And that is, you're always allowed to move precisely, if you want to say, against enemy elements, but you can't harm the innocent. You can't harm civilians. Now, we know that sometimes in attacking the enemy, civilians are harmed. And so the third principle that we tell soldiers is, whatever you're doing, it has to be proportional.
13:28 Speaker 03 So civilians lawfully may be killed or injured, but the injury has to be proportional to the need to destroy the enemy. Now, this, of course, is a very sticky wicket, because what I may think is proportional may not be what someone else thinks is proportional. And then the last principle, we always talk about it, is you can't use a weapon or do something that causes unnecessary suffering. So, for example, that's why we don't allow the use of poison or chemical weapons. And so those are the four things that we tell soldiers, and these rules of engagement are all built around that, with the key one being,
14:12 Speaker 03 you distinguish between the enemy and civilians by looking for hostile intent. That is, assuming the enemy is not wearing a uniform.
14:22 Lindsay Graham? So would you run down these rules, then, in Cali's case?
14:26 Speaker 03 So, in Cali's case, the intelligence that they got on March 16th, 1968, was that they were going into the village of Meli to clear out a very, very sophisticated Viet Cong battalion that had been there for years and years. So, at least based on the intelligence, it was militarily necessary for Cali's platoon to go into Meli. The problem was... As probably your listeners know, is the military intelligence was just bad. There were no Viet Cong in the village. The only people who were at My Lai were unarmed and unresisting civilians.
15:10 Speaker 03 And so, Calley and his men violated the principle of distinction because there were no enemy there to engage, because they were unarmed and unresisting. There were no military-age males. They were just innocent civilians. And then, of course, certainly wasn't proportional because you had no military reason to be in the village. Once you found out the enemy wasn't there, unnecessary suffering doesn't really apply because they weren't using an illegal weapon of any way. But I would say the big problem is, they violated the principle of distinction, which is you can only attack enemy elements, but you can't harm the innocent.
15:52 Lindsay Graham? So if one of these soldiers, and I feel for them greatly, it's a horrible situation and very stressful all around, but what if they were cognizant of these principles, realized that war crimes were happening around them, and then decided to act? What could they have done? How do you report a war crime in 1968 US Army?
16:15 Speaker 03 Well, in fact, the Military Assistance Command Vietnam published regulations that required all American soldiers to report war crimes that they saw committed by an enemy, and also to report war crimes that they saw committed by Americans. Now, just because there's a regulation out there and a requirement to do this, doesn't mean it's going to be easy to do. And I think that part of the problem is that it's very, very difficult for a soldier to decide to disobey an order. As a general rule, we want unquestioning and immediate obedience to orders.
17:00 Speaker 03 We cannot have soldiers questioning the officers' orders or a non-commissioned
17:06 Speaker 03 Officers orders because you can't fight a war and win a war if there's a discussion about whether or not I'm going to follow your order. The problem of course is that what do you do when you get a clearly illegal order? So we tell soldiers that if you get an illegal order, you must not follow it. But, but we also tell soldiers, you disobey an order at your own risk. And if it turns out that you were wrong in refusing to follow this order, well, then maybe you will have to pay some sort of a price. So I think the problem here is, is that sometimes determining what's unlawful is, is difficult.
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18:43 Lindsay Graham? One of the people who in the moment did decide that something untoward or worse was going on was Hugh Thompson, but he was vilified for speaking out. Talk about the backlash that he and others who thought about speaking out faced.
19:06 Speaker 03 Well, I think Hugh Thompson is the real hero of My Lai. In fact, some credit Hugh and Hugh's actions as the helicopter pilot that day for really stopping the massacre, although by that time as many as 500 had been killed, 350 to 500. But, yes, Hugh Thompson, who was flying in a helicopter over My Lai, began to see bodies, dead bodies of civilians on the ground, and he said, "Whoa, what's going on here? This looks like some killing is out of control." He lands his helicopter, he actually has a discussion with Cali, who says, "Mind your own business, get out of here."
19:48 Speaker 03 And at one point, he actually tells his gun crew in the helicopter, "If you see Cali's platoon, or second platoon, if they start pursuing some of these civilians, I'm telling you to open fire." I mean, this was shocking, that an American pilot would tell his crew to open fire on other Americans. But you're exactly right, he reports it to his chain of command, the brigade commander, Colonel Henderson, and he also tells other people what he's seen, and nothing is done, because there's a cover-up. And you're right, he is vilified, he gets death threats, he suffers a lot, and this is really not that unusual.
20:32 Speaker 03 Sometimes you make a hard decision, it's the right decision, and others don't like it. There were many people who, after Cali was convicted, insisted that Cali really was a hero, and that we should never have prosecuted him. So I think this is just the flipside of what Hugh Thompson faced. Yeah, I think it was a backlash, it was wrong, but sometimes this happens if you are a whistleblower, if you want to call it like that. Now, at the time, there's not really, we're not talking about whistleblowing here, because this is the Army, but I think, you know, Thompson was willing to stand up for the courage of his convictions, and he did save many lives, but he did pay for it personally
21:15 Speaker 03 because of people who criticized him for what he did.
21:19 Lindsay Graham? If I can dig in a little there, you say it's not whistleblowing because this is the Army. Does the Army not have any whistleblower protections in place?
21:27 Speaker 03 Well, we certainly do now, but at the time in 1968, I don't think there really was any sort of whistleblower kind of protection. I mean, certainly Thompson spoke up. I think he notified the chaplain. He notified the chain of command, but he didn't really get any sort of protection. So it's not the sophisticated sort of whistleblower protections that we have in the government today.
21:54 Lindsay Graham? Now, as you dig into this story a bit, something might occur to you that it's almost remarkable that we know about this story, given that the backlash of potential witnesses, given the code of silence within the Army, the incentives to keep the truth hidden. Should we be surprised that this incident ultimately came out at all?
22:14 Speaker 03 Well, I think so because the other hero is a guy by the name of Ron Ridenhour. The murders at Meli happened in March of 1968. And about a year later, Ron Ridenhour, who was not at Meli and was not with Cali's unit, Ron Ridenhour began to hear people who had been there talking about this. And Ridenhour was shocked. He couldn't believe that this sort of thing had happened. Now, this is all back in the US now. These guys are all out of Vietnam. They've all been discharged. And Ridenhour decides that he's going to write some letters. So you've got to think back to the 60s, 1969.
22:59 Speaker 03 If you wanted to let the government know about something bad, about all you could do, well, you could send a telegram or you could write a letter. No one's going to answer your phone call. So Ridenhour began to write letters and he wrote at least 25 letters in which he explained that he'd heard about this massacre at Meli, these killings at Meli. And one of Ridenhour's letters reached General Wes Moreland, who was then the chief of
23:29 Speaker 03 Staff of the army and Wes Moreland turned over the letter to the army IG who began investigating it. So yes, there had been a very sophisticated cover up for more than a year at the highest levels, including the entire division staff. And yeah, I think you can say if it hadn't been for Ron Ridenhour's letter writing, we might never known about this. Certainly the South Vietnamese were not going to do anything about it because their view was that probably the people at My Lai were Vietcong sympathizers anyway. And why do we want to do anything about this?
24:11 Speaker 03 So yeah, I think if it hadn't been for Ron Ridenhour, we wouldn't know about it.
24:16 Lindsay Graham? After World War Two, we saw increasing interest in psychology to try to discover why ordinary people can commit or allow terrible acts, probably in a response to the Holocaust and Nazi Germany. The Milgram Experiment is one of the most famous. What role do you think this bystander effect or the group think that these experiments pointed to played in what happened at My Lai?
24:39 Speaker 03 There's a very famous series of articles or a book by Hannah Arendt, who talks about the banality of evil and how people who ordinarily were just normal men and women ended up doing really evil things. And maybe that's a product of group think. I think that there are a couple of explanations here about what happened at My Lai. The first one would be, I think most of the soldiers kept quiet, maybe because they were ashamed of what they did. Or maybe they kept quiet because they didn't want to incriminate themselves. Or maybe they kept quiet because they thought they did nothing wrong.
25:21 Speaker 03 And one of the big problems, I think, is that, and we've done this in every single war and every single army does this, and that is you, you tend to dehumanize the enemy. And you look at the enemy and you talk about the Enemy is not being like you. And consequently, then it's easier to attack the enemy and kill the enemy. And so I think part of the problem at Milai is that, at least for some of these soldiers. Okay, well, maybe some civilians were killed, but they're sort of all bad. They're not like us. They don't look like us. And so that makes the behavior easier. Has the military looked into this? Sure.
26:06 Speaker 03 And how do we prevent it? Well, again, one of the reasons, and we'll talk about this later, is we have decided that one way to prevent these war crimes is to put lawyers actually in combat operations so they can be eyes and ears and make sure that people are obeying the law. But I think to your original question about how people can commit and allow terrible acts, I think these are probably the best explanations.
26:33 Lindsay Graham? You mentioned the dehumanization of the Vietnamese as a factor here. And it's been pointed to over and over again by historians and investigators, including in the Piers Commission. How has the military perhaps reckoned with this aspect of its history? And it's the necessity of making the enemy, the enemy?
26:51 Speaker 03 Well, I think this is certainly a key problem. Dehumanization is always part of war. In World War II, we called the Germans the Krauts. We called the Japanese the Nips or the Japs. In Vietnam, we called the enemy the Goths. All this is racism. It's dehumanization. But you can easily see that this dehumanization also makes it easier for someone to commit a war crime because you end up not treating people, the enemy, the way really you should be treated. So I think that, yes, dehumanization is always part of the war and you are never going to
27:34 Speaker 03 see it disappear, I think. At least where you're talking about, someone actually has to close with the enemy in combat and take the person out. So example, one other thing, you know, we, we don't talk About in the army about killing people. We talk about neutralizing the enemy, right? I mean, you've heard some of these semantics and and that's all part of human psychology of making it easier to do what really otherwise isn't allowed. You're you're not allowed to kill people, but you are if you're in the army and you're doing it as part of national policy.
28:12 Lindsay Graham? And let's turn to the punishments or lack thereof following MEI. Many soldiers and officers were charged with either war crimes or part of the cover up. But only William Kelly was actually convicted. You mentioned he was a terrible leader, but do you think he was also a scapegoat?
28:28 Speaker 03 Well, I don't think he was a scapegoat because in the ancient religions, and I think this actually comes out of Judaism, is the scapegoat was an innocent animal that's blamed for everybody else's sins and is therefore a sacrifice. So Kelly's not a scapegoat because he wasn't innocent. He's a murderer and he was convicted of killing 25, 30, 50 people at MEI. Now, if your question really is, yeah, but weren't other people guilty and the army failed to prosecute them? The answer is yes. We did prosecute some others. Captain Medina, the company commander, was prosecuted.
29:11 Speaker 03 Colonel Henderson, the brigade commander, was prosecuted. They were found not guilty and they were found not guilty because the prosecutor messed up the cases. They didn't charge, in my opinion, the right things, but I think ultimately, sad to say, the army just wanted to get the whole sordid mess behind it and move on. And so I think that it was a failure. The army should have prosecuted, could have prosecuted others, but it didn't. You know, the interesting thing is that the Kelly case, which was prosecuted at Fort Benning in Georgia,
29:50 Speaker 03 even though the evidence was open and shut, the jury was actually out on the merits to decide guilt over 70 hours. 70 hours, which is incredible. But they did find him guilty. They did sentence him to life in prison. He never really served much time, but at least one case was prosecuted.
30:11 Lindsay Graham? So is it fair to say that, in your opinion, you do not think that justice was served?
30:16 Speaker 03 Well, I think that there were others whose actions at Meli should have been prosecuted at a court martial, and they weren't. So I think I'd probably conclude that other than Cali, this is not really something that we should be proud of, that justice was probably not done.
30:37 Lindsay Graham? Well, let's talk about the organization you served in for many years, the JAG Corps. Talk about its history, its role. What does JAG even stand for?
30:45 Speaker 03 Well, so from the very beginning of the American Army, and you probably know this year is the 250th anniversary of the Army. Our Army started in June 1775. So almost from the beginning, there have been lawyers in the Army. George Washington, the commander of the Continental Army, wanted a judge advocate. He wanted a lawyer to advise him mostly on courts martial in the early days of the Revolution. And so on July 29th, 1775, Congress appointed
31:26 Speaker 03 the first judge advocate general, which is the top lawyer in the Army. And we've had a legal corps pretty much since that time. For many, many years, it was really all about prosecuting and defending soldiers at courts martial. But after Meli, and I think this is really, really important, the leaders of the JAG Corps in the Army, and I think also the other JAG Corps in the Navy and in the Air Force, recognized that if we were going to prevent another Meli, we had to have lawyers more engaged in military operations. So
32:09 Speaker 03 people sometimes are surprised to hear this, but no one in World War II said before launching an operation, "Hey, let's check with the lawyers to see if this is legal." Certainly no lawyer advised Harry Truman as to whether or not it was legal to draw The atomic bomb in August of 1945. But after My Lai, the Army JAG Corps said, hey, if we're going to prevent another war crime, we're going to have to have lawyers with commanders on military operations. So really, since the mid 70s and the 80s, anytime a commander goes to war, lawyers go with him or her.
32:52 Speaker 03 And that's really the JAG Corps' reason for being now, is to provide legal advice to commanders on military operations around the clock, 24 hours a day, seven days a week.
33:04 Lindsay Graham? I'd like you to detail a little more of the history of the evolving use of law in the Army, especially perhaps after Operation Urgent Fury.
33:13 Speaker 03 So you've got the invasion of Grenada in October of 1983. And before that time, lawyers were involved in military operations, but they were really just looking at war plans. So the Army and the other services have a war plan for everything. I mean, if anything you could think of, there's some sort of war plan out there. So is there a war plan for the invasion of, you know, pick your country? Yes, we've got it. And lawyers were looking at these war plans. But what happened in Grenada in October of 1983 was the JAG Corps sort of accidentally
33:56 Speaker 03 had a lawyer on the ground in Grenada. And all of a sudden, a lot of questions came up that no one had ever thought of. For example, the Marxist government in Grenada had some Cuban officers and Cuban soldiers on the island, providing military advice to the Grenadian People's Army. And as troopers from the 82nd Airborne Division out of Fort Bragg began to encounter these Cubans and took them into custody, the question was, hey, are these Cubans prisoners of war? Are we at war with Cuba? What sort of legal... What status do these people have? And it was not just Cubans.
34:40 Speaker 03 The Cold War was on, and so there were other Soviet-style soldiers who were there as well, I think, from some of the Warsaw Pact nations. So, all of a sudden, this was a wake-up call that you can't just be looking at war plans. If you're going to be relevant, you actually have to have your lawyers there on the ground with commanders. There were all sorts of questions that came up. There were American students on the island of Grenada attending medical school. They wanted to go home. And one of the questions was, can we put these civilian students on military aircraft and fly them home? You know, as a general rule, you can't just get on a military plane.
35:24 Speaker 03 So Grenada, I think, as you raised the issue, is really the wake-up call, a recognition that we've not only got to be involved in planning, but you actually have to be there with the commander to be able to answer questions in a timely fashion. Got to give timely advice, relevant advice, good advice. That's really the lesson of Grenada.
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37:20 Lindsay Graham? Given the many failures that contributed to me lie, there are obviously plenty of lessons to take away, but you've been an army lawyer for 25 years before becoming a full-time military historian. So what for you are the most significant lessons of me lie? And have they been addressed?
37:37 Speaker 03 Well, I think I always tell people, and I certainly always tell my students, that every army commits war crimes. It doesn't make any difference who you are, there's always going to be some soldier in an army who is going to commit a war crime. What you have to make sure is not the issue, is that you have some institutional flaw, or institutional failure, or institutional shortcoming that's allowing these war crimes to occur. So I think the lesson for me lie is it's a horrific war crime. Maybe we can't commit or prevent war crimes, but we have to prevent something from me
38:21 Speaker 03 lie ever happening again, where you have between 350 and 500 innocent, unarmed, unresisting civilians killed. So the first lesson has to be, you've got to train and educate your soldiers on their obligations and responsibilities under the law of war. And you can't just do it at basic training. You've got to do it every year. Every time you deploy on a military operation, you've got to get your lawyers in there to train and educate soldiers on their obligations and responsibilities. And then you have to have lawyers involved 24 hours a day, seven days a week, to advise
39:05 Speaker 03 on the treatment of detainees, the lawfulness of targeting, whether or not it's appropriate use of force, are these the right rules of engagement? So I think those are the lessons. And we've been successful. We have never had another situation like Mila happen again. So I think that the military has done a good job. And in fact, sometimes people find this hard to believe, but commanders actually, in my opinion, appreciate having lawyers there to help them. Because lawyers are rarely going to say, "You can't do this." A lawyer is going to try to find a solution that will be lawful where you're complying
39:50 Speaker 03 with the law of armed conflict.
39:52 Lindsay Graham? Now, while we may not have ever had a Mila since, there have been other famous instances of war crimes committed by American soldiers, and one notable case, that of Clint Lorance. He and two others were pardoned by President Trump in 2019. What do you make of these cases?
40:08 Speaker 03 Well, whenever I'm asked about the Lorance case, or Matt Goldstein, or Eddie Gallagher, the bottom line for me is that they were prosecuted. And in fact, in the Lorance case, the men who served under Lorance had no hesitation in testifying against him at trial. And he was convicted. Matt Goldstein admitted, when he had an interview at the Central Intelligence Agency, that he had assassinated, and that's actually Goldstein's word, assassination, that he had killed a suspected Taliban bomb maker. And of course, Eddie Gallagher was also prosecuted and convicted. I also tell people, the President of the United States, President Trump, as the Commander
40:53 Speaker 03 in Chief, has the absolute authority- As our commander to pardon these men and President Trump did it because he thought it was the right thing to do. I don't think that's particularly important to me. What's important to me is that the cases were prosecuted. And Matt Goldstein's never went to trial, but Gallagher and Lawrence did. And I think you prosecute these cases, Lindsay, to deter others from committing these sort of war crimes.
41:25 Lindsay Graham? Continuing to look forward to the future of military conflict, we can look to Ukraine and see that armed conflict is evolving. And I wonder if there's a danger in further dehumanization if we move inevitably towards the use of drones and other technology. Do you think this conflict at a distance would necessitate new or updated rules of engagement?
41:50 Speaker 03 Well, I think that what is happening in the conflict between Ukraine and Russia has really turned warfare upside down. I'm not sure that the American public understands that the unbelievable use of unmanned aerial vehicles of drones is really something absolutely incredible. Because if you swarm in with 500 drones, how are you going to shoot them all down? We're not really ready here in America to face this sort of technology. So I think that, yes, more and more, I think you're going to begin to hear commentators
42:30 Speaker 03 say that the Ukraine-Russia war really is the war of the future, particularly because you can build these drones for about $500 apiece, and they're able to really take the war to the enemy in a way it couldn't be done before. Now, as far as your question about dehumanization, I think that this is maybe one of the problems with technology. If we're talking about 500 years ago, where in order to kill the enemy, I actually had to get up to the enemy and actually kill that person face to face. Well, that's a big change from the way things are done today where a lot of the
43:11 Speaker 03 technology allows us to neutralize or defeat the enemy without ever seeing him or her. And I think drones, if anything, probably are going to make this even more pronounced. And that is the technology takes you away from the face-to-face horrors of war. And without that face-to-face horror of war, I think it gets easier to kill. So yes, I think that this may, in fact, make it easier. Maybe it will promote dehumanization. It's hard to say. But I do think that I'm a big believer, as a professional historian, that it's the
43:54 Speaker 03 law of unintended consequences that you always have to be looking out for. And I think what's happening in Ukraine and Russia now is really so. We don't really have all the facts yet, and I don't want to drone on here, but the estimates are that a million Russians have been killed and injured, and probably 400,000 Ukrainians killed or injured in this war. These numbers are absolutely incredible when you consider, Lindsay, that we had 58,000 Americans killed in Vietnam, and we consider Vietnam to be a pretty bad event. So I think that the drone technology is probably going to mean that we'll see even more horrific
44:38 Speaker 03 cases like this.
44:40 Lindsay Graham? Well, Fred Bort, thank you so much for talking to me today on American Scandal.
44:43 Speaker 03 You are very welcome, Lindsay. I hope it was helpful.
44:47 Lindsay Graham? That was my conversation with historian and lawyer Fred Bort. He served on active duty as an Army lawyer for 25 years before retiring as a colonel. He then became the regimental historian for the Judge Advocate General Court and served as a professor of its legal center and school in Charlottesville, Virginia.
45:07 Lindsay Graham? From Wondery, this is episode five of The Massacre at Milan for American Scandal. In our next series, during the early years of the 20th century, the United States came face to face with an ancient threat: the Black Death. When the bubonic plague hit San Francisco in 1900, the lives of millions were at risk. A brilliant young bacteriologist from the East Coast was tasked with stopping the disease, but he would soon discover that he was not just battling the plague, but an alliance of politicians and businessmen more concerned with their profits than the health of the nation. American Scandal is only possible because of listeners like you, so thank you. And don't miss an episode. Be sure to follow American Scandal on Audible or wherever you get your podcasts.
45:49 Lindsay Graham? And Audible subscribers can binge new seasons of American Scandal early and ad-free right now. Join Audible in the Audible app or by subscribing on Apple Podcasts. And to find out more about me, including my other podcasts, my live show, the history tours I'm arranging, and all sorts of other things, go to historyishuman.com. That's historyishuman.com. American Scandal is hosted, edited, and executive produced by me, Lindsay Graham, for Airship. Audio editing and sound design by Molly Baugh. Music by Thromp. This episode was produced by John Reed. Managing producer Emily Burke. Development by Stephanie Jens. Senior producer Andy Beckerman.
46:32 Lindsay Graham? Executive producers are William Simpson for Airship, and Jenny Lauer Beckman, Marshall Louie, Aaron O'Flaherty for Wondery.
46:46 Speaker 07 A trucker merges onto the I-10 in New Orleans. He checks his mirrors. The lane is clear. And then, boom. Impact. A pickup truck, seemingly out of nowhere, scrapes down the side of his 18-wheeler, multiple passengers inside. One man flees the scene. And the driver of the pickup? He doesn't seem all that upset. It didn't feel like a regular accident, because it wasn't. Across the city, truckers are getting sideswiped, all on the same stretch of the same freeway. And behind many of the cases is one person. A Hollywood stunt woman turned personal injury lawyer named Vanessa Moda. This podcast is a story about fake accidents that lead to real consequences and a scheme that ends in betrayal and murder.
47:31 Speaker 07 Listen to Over My Dead Body: Operation Side Swipe wherever you get your podcasts. Audible subscribers can binge all episodes early and ad-free right now. Join Audible in the Audible app or by subscribing on Apple Podcasts or Spotify.
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