Post Date: August 16, 2006

The following op-ed by Professor Martha Minow and 3L student J. Caleb Donaldson, Relearning Vietnam’s painful lessons, appeared in The Boston Globe on August 14, 2006.

Current events make the Vietnam era more relevant than ever. We are engaged in a war without plan or prospects for disengagement. The conflict seems part of a global danger, but we also seem interlopers — and attractive targets — in a civil war. Fighting among civilian populations raises the specter of atrocities, and we inevitably hear echoes of the My Lai massacre in the news of Marines killing civilians in Haditha, and the abuses of detainees in Guantanamo and Abu Ghraib.

A criminal trial started last week against a CIA contractor for allegedly abusing a detainee in Afghanistan, just as the Los Angeles Times reports that declassified documents reveal more than 300 verified war crimes committed by US troops during the Vietnam War. Court martial and civilian criminal proceedings have begun against those allegedly involved in a rape and mass murder in Mahmoudiya.

Some of the incidents in Iraq eerily resemble those in Vietnam: mass rapes, the killing of civilian families, even the abuse of animals. The alleged “bad apple” behind the March 12 Mahmoudiya rape and murder reportedly set a puppy on fire and threw it off a rooftop, and soldiers in Vietnam were seen “senselessly stabbing a pig.” Whether “mere” crimes or those more closely related to the tactical goals of armed conflict, each set of atrocities manifestly violated the law of war.

Abuses by our soldiers expose inadequate training, supervision, and clarity from the top. In the Vietnam War, and now, we suffered from failed leadership and overtaxed and inadequately trained soldiers, though now we also have private contractors operating outside clear chains of command and legal liability.

Vague orders and uncertainty provide soldiers with an excuse for their behavior and officers a way to avoid responsibility, but that’s the way the military has to work, in the jungle near An Khe or in Mosul. Orders need to allow enough flexibility for those on the ground to accomplish objectives. But flexibility should not become a black hole for responsibility when the unspeakable happens.

Soldiers in such conditions are under unyielding pressure to follow orders and conform to their group. They face ostracism, court martial, or physical danger if they threaten the cohesion of a fighting unit. They risk reprisals if they blow a whistle — though today their digital cameras may serve as silent witnesses.

The pressures from uncertainty, fear, anxiety, and boredom are excruciating. And young people in their late teens and early 20s have few reserves to manage the tension. Extensive studies conducted by social psychologists show that people tend to obey authority even when directed to inflict harm, people tend to conform to peer pressure, and people adapt to roles and may, as a result, not recognize brutality when in the middle of committing it. The cruelty of Abu Ghraib guards chillingly resembles Philip Zimbardo’s prison simulation experiments from the 1970s.

Putting aside what it would take to exit Iraq, to stop atrocities, we need to provide better training, and accountability for each soldier. Even a soldier who could rationally calculate chances of detection and punishment cannot be counted on to prevent atrocities. Of more than 300 substantiated war crimes in Vietnam, only 14 soldiers received any sentence. One man convicted of indecent acts on a 13-year-old girl served only seven months in prison. Of course, few soldiers can stop to weigh risks of punishment or see the big picture while on special operations, or on duty to get information from detainees.

The best protection against atrocities is leadership at the top, setting the highest standards, vowing not to strain but to uphold the law, and honoring legal standards in the details of each operation. The White House and secretary of defense show no leadership of this kind. Worse, they demand ever more secrecy in the name of national security. Secret prisons, secret orders, guidelines for interrogation hidden from public review diverge from our fundamental principles — and also make more abuses entirely foreseeable. Private contractors whose numbers are unknown to the secretary of defense and Congress fall outside the lines of military authority and the reach of international law. Congress tries to forbid cruel and inhumane treatment by our troops, but the president veils his aversion to exercise his veto in a signing statement claiming his own authority to interpret the law.

National security requires special rules, but secrecy too often leaves unpunished the individuals who commit atrocities, prevents superiors from being held responsible, shields them from incentive to change their policies, and conveniently allows the citizenry to remain in the dark about the real costs of war.

As we learn anew the costs of our Vietnam tragedy, we see how secrecy and time thicken the fog of war. Potential witnesses and suspects issue contradictory statements, and grow old or die. Accountability grows more remote. Perhaps, though, for our current struggle, it is not yet too late.

J. Caleb Donaldson is a student and Martha Minow a professor at Harvard Law School. Minow is the author of “Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence.”