519 F.2d 184 (5th Cir. 1975), 74-3471, Calley v. Callaway

Docket Nº:74-3471.
Citation:519 F.2d 184
Party Name:William L. CALLEY, Jr., Petitioner-Appellee, Cross-Appellant, v. Howard H. CALLAWAY, etc., et al., etc., Respondents-Appellants, Cross-Appellees.
Case Date:September 10, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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519 F.2d 184 (5th Cir. 1975)

William L. CALLEY, Jr., Petitioner-Appellee, Cross-Appellant,


Howard H. CALLAWAY, etc., et al., etc.,

Respondents-Appellants, Cross-Appellees.

No. 74-3471.

United States Court of Appeals, Fifth Circuit

September 10, 1975

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Ronald T. Knight, Charles T. Erion, Asst. U. S. Attys., Macon, Ga., Capt. Arnold Anderson Vickery, Office of Gen. Counsel, Dept. of the Army, Pentagon, Washington, D. C., Capt. David P. Schulingkamp, Office of the Judge Advocate Gen., Washington, D. C., S. Cass Weiland, Crim. Div., Dept. of Justice, William A. Patton, Office of the Sol. Gen., Washington, D. C., for respondents-appellants, cross-appellees.

Kenneth Henson, Columbus, Ga., J. Houston Gordon, Covington, Tenn., G. W. Latimer, Salt Lake City, Utah, for petitioner-appellee, cross-appellant.

Appeals from the United States District Court for the Middle District of Georgia.


AINSWORTH, Circuit Judge:

In this habeas corpus proceeding we review the conviction by military court-martial of Lieutenant William L. Calley, Jr., the principal accused in the My Lai incident in South Vietnam, where a large number of defenseless old men, women and children were systematically shot and killed by Calley and other

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American soldiers in what must be regarded as one of the most tragic chapters in the history of this nation's armed forces.

Petitioner Calley was charged on September 5, 1969, under the Uniform Code of Military Justice, 10 U.S.C. § 801 et seq., with the premeditated murder on March 16, 1968 of not less than 102 Vietnamese civilians at My Lai (4) hamlet, Song My village, Quang Ngai province, Republic of South Vietnam. 1 The trial by general court-martial began on November 12, 1970, at Fort Benning, Georgia, and the court members received the case on March 16, 1971. (The function of court members in a military court-martial is substantially equivalent to that of jurors in a civil court.) On March 29, 1971, the court-martial, whose members consisted of six Army officers, found Calley guilty of the premeditated murder of not fewer than 22 Vietnamese civilians of undetermined age and sex, and of assault with intent to murder one Vietnamese child. 2 Two days later, on March 31, 1971, the court members sentenced Calley to dismissal from the service, forfeiture of all pay and allowances, and to confinement at hard labor for life. On August 20, 1971, the convening authority, the Commanding General of Fort Benning, Georgia, approved the findings and sentence except as to the confinement period which was reduced to twenty years. See Article 64 of the Uniform Code of Military Justice (U.C.M.J.), 10 U.S.C. § 864. The Army Court of Military Review then affirmed the conviction and sentence. United States v. Calley, 46 C.M.R. 1131 (1973). 3 United States Court of Military Appeals granted a petition for review as to certain of the assignments of error, and then affirmed the decision of the Court of Military Review. United States v. Calley, 22 U.S.C.M.A. 534, 48 C.M.R. 19 (1973); see Art. 67(b)(3), U.C.M.J., 10 U.S.C. § 867(b)(3). 4 The Secretary of the Army reviewed the sentence as required by Art. 71(b), U.C.M.J., 10 U.S.C. § 871(b), approved the findings and sentence, but in a separate clemency action commuted the confinement portion of the sentence to ten years. On May 3, 1974, President Richard Nixon notified the Secretary of the Army that he had reviewed the case and determined that he would take no further action in the matter.

On February 11, 1974, Calley filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia against the Secretary of the Army and the Commanding General, Fort Benning, Georgia. At that time, the district court enjoined respondents from changing the place of Calley's custody or increasing the conditions of his confinement. On February 27, 1974, the district court ordered that Calley be released on bail pending his habeas corpus application.

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On June 13, 1974, this Court reversed the district court's orders, returning Calley to the Army's custody. Calley v. Callaway, 5 Cir., 1974, 496 F.2d 701. On September 25, 1974, District Judge Elliott granted Calley's petition for a writ of habeas corpus and ordered his immediate release. The Army appealed and Calley cross-appealed. At the Army's request a temporary stay of the district judge's order of immediate release was granted by a single judge of this Court. See Rule 27(c), Fed.R.App.P. This Court subsequently met en banc, upheld the release of Calley pending appeal, and ordered en banc consideration of the case. We reverse the district court's order granting a writ of habeas corpus and reinstate the judgment of the court-martial. 5

I. Summary of the Facts

On March 16, 1968, in the small hamlet of My Lai, in South Vietnam, scores of unarmed, unresisting Vietnamese civilians were summarily executed by American soldiers. A number of American soldiers were charged 6 but only First Lieutenant William Calley was convicted of murder in what has been called the My Lai Incident and also the My Lai Massacre. The facts, which are largely undisputed, are set forth in considerable detail in the written opinions of the military courts, and will be summarized only to the extent necessary for our purposes. 7

Lieutenant Calley was the 1st platoon leader in C Company, 1st Battalion, 20th Infantry, 11th Light Infantry Brigade, and had been stationed in Vietnam since December of 1967. Prior to March 16, 1968, his unit had received little combat experience. On March 15, members of the unit were briefed that they were to engage the enemy in an offensive action in the area of My Lai (4). The troops were informed that the area had long been controlled by the Viet Cong, and that they could expect heavy resistance from a Viet Cong battalion which might outnumber them by more than two to one. The objective of the operation was to seize the hamlet and destroy all that could be useful to the enemy.

The attack began early in the morning of March 16. Calley's platoon was landed on the outskirts of My Lai after about five minutes of artillery and gunship fire. The assault met no resistance or hostile fire. After cautiously approaching My Lai (4), C Company discovered only unarmed, unresisting old men, women and children eating breakfast or beginning the day's chores although intelligence reports had indicated the villagers

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would be gone to market. Encountering only civilians and no enemy soldiers, Calley's platoon, which was to lead the sweep through the hamlet, quickly became disorganized. Some soldiers undertook the destruction of livestock, foodstuffs and buildings as ordered. Others collected and evacuated the Vietnamese civilians and then proceeded systematically to slaughter the villagers.

Specification 1 of the first charge against Calley stemmed from events occurring at a collection point for civilians along a trail in the southern part of My Lai (4). This charge was also first in time of the charges against Calley. The remaining charges and specifications also followed in chronological sequence. The initial charge, with two specifications, related to two separate group killings at different locations. Private First Class Meadlo was guarding a group of between 30 and 40 unarmed old men, women and children at the trail location. Calley approached Meadlo and told him, "You know what to do," and left. Meadlo continued to stand guard over the villagers. Calley returned and yelled at Meadlo, "Why haven't you wasted them yet?" Meadlo replied that he thought Calley had meant merely to watch the villagers. Calley replied, "No, I mean kill them." First Calley and then Meadlo opened fire on the group, until all but a few children fell. Calley then personally shot the remaining children. In the process, Calley expended four or five magazines from his M-16 rifle. Calley was charged with the premeditated murder of not less than 30 human beings as a result of the killings at this location. Although numerous bodies, about 20, were shown at this point by photographs introduced in evidence, a pathologist testified that he could point to only one wound on one body which, in his opinion, was certain to have been instantly fatal. The court members found Calley guilty under this specification of the murder of not less than one human being.

After the killings along the trail at the southern edge of My Lai (4), Calley proceeded to the eastern portion of the hamlet. There, along an irrigation ditch, another and larger group of villagers was being held by soldiers. Meadlo estimated the group contained from 75 to 100 persons, consisting of old men, women and children. Calley then ordered Meadlo, stating: "We got another job to do, Meadlo." The platoon members with their weapons then began pushing these people into the ditch. They were yelling and crying as they knelt and squatted in the ditch. Calley ordered the start of firing into the people and he with Meadlo and others joined in the killing. Private First Class Dursi refused to follow Calley's order that he assist with the executions; he testified, "I couldn't go through with it. These little defenseless men, women, and kids." Specialist Fourth Class Maples refused Calley's request for Maples' machine gun to be used in the killing. A number of different groups of civilians were brought to the ditch, there to be slaughtered by the soldiers at point-blank range. A helicopter pilot...

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