The Judge Advocate Advisory Role
A unique aspect of MACV judge advocate activities was the advisory function. The use of the word advisory, which was the customary U.S. label for other MACV activities, is misleading in that it suggests that the American military lawyers were advising their Vietnamese counterparts in the application of Vietnamese law. A more accurate title would be liaison function, since the judge advocates and the Vietnamese lawyers exchanged information and co-ordinated their activities in the field of military law. It is true that the American military lawyers did, on occasion, offer advice to their Vietnamese counterparts, as in the case of applying the Geneva Conventions and in the control of desertion, but most of the Americans' so-called advisory efforts were directed toward collecting information on the workings of military law and military legal institutions; assisting their Vietnamese counterparts in securing necessary funds, people, and material to accomplish their tasks; obtaining references and answering inquiries concerning American law; and ensuring that American and Vietnamese respective military law programs worked in harmony with one another.
The judge advocate mission of providing effective legal counsel for the U.S. command required close co-ordination with all the legal agencies of the government of Vietnam. Beyond functional co-operation, however, the MACV Staff Judge Advocate was also charged with assisting the Republic of Vietnam armed forces legal branch, the Directorate of Military Justice, to develop in a manner that would effectively contribute to the prosecution of the war. While advisory activities in the strict sense were limited to the Directorate of Military Justice, members of the MACV Judge Advocate's office also established communication with members of the government and civilian legal community and assisted them in developing legal institutions whenever possible. This association was only natural in a country where the bar was small and concentrated mainly in Saigon, where military and civilian legal problems were often intertwined, and where there was no U.S. civilian legal community to work with the local bar. Cases in which mutual professional respect and friend-
ship among attorneys exerted a positive influence enabling clients to resolve their differences were countless. In Vietnam the cordial relationship between U.S. military attorneys and Vietnamese lawyers benefited both governments.
Beginnings and Development to 1965
While the Advisory Branch of the MACV Judge Advocate's office was not formally established until 1965, judge advocates had been cultivating friendships with Vietnamese attorneys for some five years. The positive results of such voluntary activity on the part of judge advocates are illustrated in an excerpt from a trip report prepared by Colonel Lawrence Fuller, Chief, International Affairs Division, Office of The Judge Advocate General, Department of the Army, who toured the Pacific commands in late 1962. Speaking of the efforts of Colonel George F. Westerman as Staff Judge Advocate to the U.S. Military Assistance Advisory Group, Indochina, the report states:
Colonel Westerman is doing an exceptional job as SJA in Vietnam. In addition to a well-run office two things should be mentioned. First, he has excellent relations with the embassy where he serves as their lawyer, also. Many of the embassy people knew him in Paris, came to rely on him there, and continue that reliance here. Second, he devotes his evening hours to several worthwhile kinds of instruction. Twice a week he teaches American jurisprudence to law school students continuing Colonel [Paul] Durbin's classes. Twice a week he teaches a class in American Political Ideals to undergraduate classes in the university, reaching a group [the university undergraduate] that worldwide is the natural target for communist propaganda. Finally, twice a week he teaches English to a class of judges and officials of the Ministry of Justice and has a morning session for the Minister of Justice alone. As a result any question involving the United States coming before the Ministry of Justice or the Saigon courts comes before one of Colonel Westerman's students. This latter activity has already paid off as the Ministry of Justice has now indicated that Vietnam will have no objection to the convening of U.S. courts-martial in Vietnam and will use its processes to make local witnesses available. This has been a problem to us throughout Indo-China since 1954 and is the first breakthrough we have had. For eight years the Department of State insisted that because of local objections we could not convene courts in Vietnam, Laos, Cambodia, and Thailand. Colonel Westerman by his round-the-clock efforts is making countless friends for himself and for the United States.
The efforts of Colonels Durbin and Westerman were continued and expanded by subsequent judge advocates. By 1965 a multifaceted advisory program was accounting for a significant portion of the time of the MACV judge advocate's office. Special emphasis was placed on aiding the Vietnamese to develop legal programs that would increase the efficiency of the armed forces, deter subversive activities of the Viet Cong, and promote loyalty to the Saigon government.
One important advisory effort was the collection, translation, and interpretation of Vietnamese decrees and regulations relating to the resources control program, military discipline, and other subjects having a bearing on the conduct of the war. The MACV Judge Advocate's office was the first agency in the U.S. command to undertake this task in a comprehensive way. As the documents were translated by the Vietnamese attorney working in the Judge Advocate's office, copies were forwarded to appropriate U.S. government agencies and MACV staff sections so that all U.S. personnel could keep abreast of changes in the Vietnamese system and work more effectively with their Vietnamese counterparts. For example, in January 1965 distribution of Minister of Defense Decree 546 to all U.S. advisers was completed. This law was significant to the resources control program because it granted broad authority to the Vietnamese military police to conduct investigations and make arrests, particularly in cases concerning offenses against state security, which included the unlawful acts of the Viet Cong and their accomplices, sympathizers, and collaborators. Previously there had been large jurisdictional gaps where matters of state security were concerned. This broadened jurisdiction was especially important in areas away from the principal cities, where law enforcement officers were thinly spread and it was important to take decisive action quickly in order to prevent offenses or to apprehend offenders. The distribution of this decree complemented a comprehensive study on the resources control, arrest, and search and seizure laws of the Republic of Vietnam, which had been prepared by the MACV Staff Judge Advocate's office and was also distributed to U.S. advisers in January 1965. By March this study had been translated into Vietnamese and distributed to U.S. advisers for use in conjunction with their Vietnamese counterparts. In May the translation into English of all Vietnamese resource control laws, orders, and directives was completed. A special edition of seventy mimeographed sets was furnished to the Naval Advisory Group for distribution to all U.S. vessels on patrol in Vietnamese territorial waters.
In order to broaden the base of known Vietnamese law, opinions prepared by the Vietnamese civilian attorney in the MACV Staff judge Advocate's office were serialized, stenciled, and distributed to all U.S. service lawyers in Vietnam. The first three published opinions were titled "A Study of the Attorney Profession," "Procedures for Transaction in Real Estate," and "Acquirement of Real Estate in Vietnam by Foreigners." The MACV Staff Judge Advocate's office prepared an English-Vietnamese Law Dictionary, copies of which were furnished to all U.S. and Vietnamese military and civilian lawyers and judges in Vietnam. The office had recommended that the MACV Adjutant General establish a uniform indexing
system and format for translated versions of Vietnamese decrees, directives, and other documents, but pending action by the Adjutant General the Staff Judge Advocate's office continued to collect, translate, mimeograph, index, and distribute Vietnamese government documents. By July 1965 eighty-five documents had been so prepared, all relating to some aspect of Vietnamese law. Summaries and reports on Republic of Vietnam armed forces military justice and the republic's civil legal system were also prepared by the MACV Staff Judge Advocate's office to assist the field advisory effort.
In addition to collecting and utilizing Vietnamese laws, the Staff Judge Advocate's office also furnished appropriate law books, texts, and other legal materials to the Vietnamese. In order to assist the Minister of Justice of Vietnam. in preparing an election law, the Staff Judge Advocate sent him in April 1965 a copy of the Precinct Chairman's Manual: Korean Election Law of 1948, which was prepared when Korea was under U.S. military government, and a report by the U.S. Presidential Commission on Registration and Voting Participation. During the same month the Minister of justice and Minister of the Interior were also sent copies of Law and Population Control in Counterinsurgency, prepared by The Judge Advocate General's School, U.S. Army, Charlottesville, Virginia. In May forty Judge Advocate General's School texts on international law were distributed to various Vietnamese agencies and individuals, including the ministries of foreign affairs, interior, and justice, the law school in Saigon, and the Vietnamese judge advocate officers. In June similar distribution was made of texts on civil law and the law of land warfare. The Staff Judge Advocate's office also participated in Law Books-USA, a program funded by voluntary contributions from U.S. lawyers to provide foreign lawyers with sets of eight American paperback lawbooks. In June thirty-five sets of such lawbooks were obtained for distribution to Vietnamese lawyers, judges, military law officers, and others who would benefit by them.
Judge advocates devoted considerable time in 1965 to working with Vietnamese agencies and the U.S. command to assist the Vietnamese in strengthening their governmental institutions. At that time these institutions were under tremendous pressure from several sources. Although many Vietnamese leaders were well educated and highly sophisticated, the government as a whole did not have the physical means or administrative experience to cope with the mushrooming demands placed on the bureaucracy by the war. There were far too few trained civil servants, and these were not available at all in large areas of the country. The Communists and other dissident factions were relentless in their efforts to thwart government programs, both military and civilian, and the rapid turnover of governments in Saigon further aggravated the situation. The Vietnamese govern-
ment was under the difficulty of improving its programs and undertaking new ones to hold the country together, while at the same time it was struggling for its very existence against a determined and ruthless enemy. The U.S. command worked vigorously to strengthen and assist the Vietnam government as rapidly as possible, mindful to respect Vietnamese sovereignty and keenly aware that American solutions would not always work with Vietnamese problems. Most of the Vietnamese attorneys with whom MACV judge advocates worked were competent, dedicated men who were concerned over the plight of their country and who worked to improve their government. They needed reinforcement and encouragement, rather than direction.
In the MACV Staff Judge Advocate's office, priority was given to advising the Vietnamese military establishments, which traditionally placed little emphasis on legal proceedings as a means of discipline. In January 1965 the Staff Judge Advocate, Colonel Prugh, encouraged a study designed to promote a higher degree of discipline and respect for military justice in the Vietnamese Army. Materials relating to military justice training were furnished to the Director of Military Justice, and a program was initiated to develop reliable data on disciplinary conditions in Vietnamese Army units in the field. In March the Staff Judge Advocate of the Vietnamese high command presented to the MACV Staff Judge Advocate a plan for the organization of judge advocate offices at the Vietnamese corps headquarters for the purpose of promoting military justice in the field and bringing offenders to speedy trial. The plan was later co-ordinated with the Director of Military Justice. Proposed tables of organization and equipment for the newly established office of the Staff Judge Advocate of the high command and for the proposed corps judge advocate offices were discussed and translated into English. Also in March a study was made of the Vietnamese armed forces claims procedures, and, after co-ordination with the MACV comptroller, arrangements were made to have a representative of the Claims Branch participate in financial management team surveys and other activities of the Military Community Action Program, which was aimed at providing more timely and realistic payment of claims by the Vietnamese armed forces to Vietnamese civilians.
To resolve problems common to Vietnamese and U.S. and other Free World Military Assistance Forces in the areas of law, order, and discipline, a proposal was submitted by MACV to the Director of Military justice for the establishment of a Military Community Affairs Council. Liaison was maintained by the MACV Staff Judge Advocate with the judge advocate of the Korean forces, who was furnished information and copies of appropriate MACV directives covering legal and disciplinary matters, and other data describing the Vietnamese civilian and military legal system.
A chronic problem throughout the war was the desertion rate in the Vietnamese armed forces. As early as May 1965 the MACV Staff Judge Advocate wrote to the J-1 of the Vietnamese high command detailing some proposed solutions. In conjunction with the letter, the Staff Judge Advocate also sent a plan for control of desertion in the Vietnamese armed forces to the MACV assistant chief of staff, J-1. It was not unusual for studies or proposals initiated by the staff judge Advocate's office to be submitted to U.S. command staff sections as well as to appropriate Vietnamese agencies so that parallel action could be taken. In May 1965 also a staff study "to examine the role of the Civil Law in the Counterinsurgency in Vietnam and to make pertinent recommendations" was prepared and sent to the Commander, U.S. Military Assistance Command, Vietnam, and subsequently to the U.S. Ambassador and the director of the U.S. Overseas Mission. (See Appendix C.) The staff study pointed to the need for improving the effectiveness of the Vietnamese civilian legal institutions and recommended that the director of the U.S. Overseas Mission study those aspects relative to the civilian advisory effort. A staff study calling for the establishment of a civilian advisory effort in law was prepared and also submitted to the commander, who approved and transmitted it to the director of the U.S. Overseas Mission. Among various other papers submitted to the commander and to the MACV chief of staff were current judge advocate law programs dealing with Vietnamese resources control laws; apprehension, trial, and punishment; improvement in effectiveness of current search and seizure laws; information and education in the law; and building a popular base of respect for the rule of law in Vietnamese society.
Assisting the Vietnamese to create, strengthen, reorganize, or replace governmental institutions and agencies was a challenging task. The judge advocate advisers had not only to understand the theory of the Vietnamese system, but they had to be thoroughly familiar with the actual operation of the laws under the Vietnamese government and the interaction of law agencies with other government agencies. A high degree of co-ordination was required of all Vietnamese agencies and U.S. staff sections involved. Given the basic unfamiliarity of most Americans with the Vietnamese legal system, the instability of Vietnam's government, the tremendous pressure for effective action generated by the war, and the American penchant for innovation, it was inevitable that some of the changes made in Vietnamese institutions would be unsuccessful. An interesting example of an advisory breakdown in the legal area was the demise of the Gendarmerie.
The Vietnamese Gendarmerie, patterned on the French force of
the same name, was a national organization of "judicial police" that filled a gap between the military and civilian law enforcement agencies. It was a rural police force spread throughout the countryside, and composed of men who were intimately familiar with the areas to which they were assigned. Known as "The Red Hats," because of their distinctive red headgear, these men were a familiar and respected symbol of authority. The Gendarmerie played a very important investigative role, especially away from the major cities. As judicial police they conducted investigations for the courts and had the authority to take sworn statements that were admissible in court. In the Vietnamese legal system they played a vital role in bringing the rule of law to the people of the countryside. Unfortunately, during the process of reorganizing the various Vietnamese law enforcement agencies, a decision was made that the Gendarmerie was not worth keeping; funds for Gendarme operations were cut from the approved budget, and the organization went out of existence in January 1965. A huge backlog of cases piled up in the Vietnamese courts because there was no one to investigate or process them. Given the conditions existing in Vietnam at the time, it is not difficult to see how the mistake of abolishing the Gendarmerie was made. Very few Americans understood the place of the Gendarmerie, since there is no equivalent force anywhere in the U.S. legal system. U.S. military advisers were not concerned with what were considered civilian police matters, and the civilian public safety advisers of the U.S. Overseas Mission, who were working with the Vietnamese National Police, naturally viewed police functions in terms of their own organizational experience. Since the Gendarmerie did not fall into any familiar category of American law enforcement organization, it was abolished.
The worst aspect of the reorganization was that when the Gendarmerie was disbanded about half the men were transferred to the civilian National Police and the other half to the Vietnamese military police, but no systematic effort was made to transfer Gendarmes and their cases together, so that investigations could be completed. Since both the National Police and the military police were being developed along American lines, there was no law enforcement agency designed to carry on effectively the judicial police work of the Gendarmerie. As a result, thousands of cases were never completed. As the full significance of what had happened came to light, Colonel Nguyen Mong Bich, the Vietnamese Director of Military justice, took steps to fill the void by establishing among the military police a section initially called the Military Judicial Police, This section was later named the Criminal Investigators, following the American pattern and adding the concept of the judicial policeman with special authority as a sworn investigator for the court. The demise of the
Gendarmerie, however, severely disrupted Vietnamese military judicial operations for a considerable period of time.
Law Society of Free Vietnam
One of the more enjoyable advisory activities was the organization of the Law Society of Free Vietnam in May 1965. The society initiated a cultural program designed to enable American military lawyers to exchange views and to discuss differences in law systems and doctrines with members of the Vietnamese legal profession. It was intended that the program would not only establish better relations between American military lawyers and members of the Vietnamese legal profession, but that it would also foster the use of law as a weapon in counterinsurgency. The program, entitled The Role of Law in Contemporary Society, consisted of a series of thirteen seminars, meeting every other week. The meetings included panel discussions, mixed team debates, individual presentations, critiques, and selected motion pictures, followed by a social hour. The beginning of the seminar series was scheduled to coincide with Law Day, celebrated on the first day of May. The Law Society sent to the armed forces radio service a list of spot announcements for broadcast from 26 April through 2 May; transmitted materials for news articles; requested area chaplains to note Law Day in their sermons; and suggested issuance of appropriate statements by major subordinate commanders.
The first meeting of the Law Society was held on 5 May 1965 at the Vietnamese-American Association in Saigon. Lieutenant Richard E. Reider, a U.S. Navy legal officer, spoke on The Citizen's Role in Law. Among the prominent persons to attend the first seminar were U. Alexis Johnson, Deputy American Ambassador; Barry Zorthian, Director, U.S. Information Service in Saigon; Ly Binh Hue, Public Prosecutor of Saigon; Huynh Duc Buu, Assistant Public Prosecutor; Vu Tiem Tuan, judge, Saigon Court, of Appeals; and Colonel Nguyen Mong Bich, Director of Military justice, later a justice of the Supreme Court. For the second program, Lawyers in Contemporary Society, the speaker was Vuong Van Bac, Treasurer of the Bar of Saigon, Secretary General of the Association of Vietnamese Lawyers, and a member of the faculty of the National Institute of Administration and of the University of Dalat (later a negotiator at the Paris peace talks, ambassador to London, and subsequently Foreign Minister). At the third seminar Colonel Nguyen Mong Bich spoke on The Function of the Courts. To illustrate the fourth program, "Trial by jury," a mock trial written by Colonel John M. Rankin, U.S. Air Force, Assistant Staff Judge Advocate, MACV, was presented to the audience, which included many distinguished Vietnamese jurists. On 14 July 1965, Mrs. Nguyen Phyong Thiep, a prominent attorney in Saigon, presented a paper on The juvenile Program; on 28 July
VIETNAM JUSTICES HOLD PANEL DISCUSSION AT MEETING OF LAW SOCIETY IN SAIGON. U. Alexis Johnson is in the foreground, Colonel Prugh standing, right.
Lieutenant Colonel Malcolm L. McCain, Staff Judge Advocate, First Logistics Command, U.S. Army, Vietnam, discussed judicial Review Procedures.
The seminars continued to draw large and interested audiences from the Vietnamese and American communities. After each seminar Vietnamese members of the audience were eager to express their views. Speeches and presentations were generally printed in both English and Vietnamese and distributed to the audience; some were reprinted in Saigon newspapers. These meetings fostered a democratic exchange of ideas, increased the legal knowledge of the participants, and provided a cordial atmosphere for professional contacts. Most important, the seminars presented a sampling of American legal ideas and attitudes to an influential segment of Vietnamese society in a manner the Vietnamese could accept without resentment. These Vietnamese lawyers and judges, who were able scholars in their own right, were introduced to new alternatives for dealing with legal problems and stimulated to analyze and improve their own legal institutions. The Americans, in turn, learned from the Vietnamese.
While judge advocate staff members spent most of their time in Saigon, they made periodic trips to other parts of the country to study what effect programs initiated in Saigon were having in the field. In late 1964 and again in early 1965 the MACV Staff Judge-Advocate,
accompanied by his counterpart, the Director of Military Justice, made visits to the Vietnamese commanding generals of the four corps to discuss discipline procedures, desertion rates, and the handling of Viet Cong prisoners. In May 1965 they visited the U.S. Marine legal officer at Da Nang to co-ordinate legal activities involving newly arrived U.S. marines with Vietnamese authorities in the Da Nang area. At the request of the MACV Staff Judge Advocate the Director of Military Justice made a special visit to the Vietnamese commanding general of I Corps to ensure that several recently captured terrorists would be dealt with in a military trial. There had been a press story to the effect that the terrorists were to be executed without even an attempt at trial, but this did not occur and Vietnamese legal processes were fully observed. Convincing the Vietnamese commander to adhere to legal procedures in dealing with Viet Cong agents was of more than theoretical interest to the U.S. command since the Viet Cong had publicly avowed a policy of reprisal against U.S. prisoners of war, and did in fact later execute at least three prisoners allegedly in reprisal for executions by the Vietnamese of other Viet Cong terrorists.
The Advisory Division
It was the opinion of the MACV Staff Judge Advocate that legal advisory activities could contribute significantly to the allied mission in South Vietnam, and that a legal advisory program deserved official recognition and support. A request to use American legal resources to establish an advisory branch was submitted by the MACV Staff Judge Advocate to the Commander, U.S. Military Assistance Command, Vietnam, in January 1965. The request was approved and the Advisory Branch, initially consisting of a chief and two field representatives, came into existence in July 1965. While the number of people and methods of operation of the Advisory Branch varied somewhat in subsequent years, the original plan called for an advisory chief to be stationed at the Staff Judge Advocate's office in Saigon, and one field adviser to be located in each of the four corps areas. The Advisory Division continued to function until the Agreement on Ending the War and Restoring Peace in Vietnam became effective on 27 January 1973. At that time the incumbent chief of the Advisory Division became the legal adviser to the U.S. Delegation to the Four Party Joint Military Commission in Saigon during the sixty days of that body's operations.
The chief of the division worked directly with the Directorate of Military Justice and other Vietnamese governmental agencies on such matters as budgeting, tables of organization and equipment, law reform, desertion control, administration of the military courts and prisons, and other programs to assist the Vietnamese to improve
the functioning of their legal system. The advisory chief received and analyzed reports and information from the judge advocate field advisers, assisted them in their work in the corps areas in any way possible, and co-ordinated the whole judge advocate advisory program.
The field advisers were the eyes and ears of the MACV Staff Judge Advocate in the respective corps areas, monitoring the status of law and order away from Saigon—morale and military discipline in the field units, the effectiveness of resources control measures, the desertion control program, and the functioning of the military courts and prisons. Working in conjunction with other U.S. advisers, they assisted their Vietnamese counterparts to improve legal facilities and legal programs. When possible, they established contacts in the local legal community, and made recommendations to the Staff Judge Advocate in Saigon for improving existing programs or establishing new ones. Finally, they acted as liaison between the U.S. command and Vietnamese legal officials in their own corps areas, providing limited legal services to the U.S. advisory headquarters to which they were assigned.
The status of the field advisers varied from corps to corps and from time to time throughout the war. I Corps, the northernmost and most distant corps area from Saigon, had a resident judge advocate adviser from August 1965 until March 1973. Originally stationed in Hue, where the university, the civilian and military courts, and the prison were located, the judge advocate adviser moved to Da Nang after Tet of 1968, when the military courts and prison also moved to Da Nang. II Corps, comprised of the Central Highlands provinces, and by far the largest corps area in terms of geography, had a resident judge advocate adviser from 1965 until 1973. The III Corps judge advocate adviser was stationed at the MACV Staff judge Advocate's office in Saigon, where he assisted the advisory chief and taught courses at the Saigon University Law School, performing corps advisory functions as well. The IV Corps judge advocate adviser was located in Can Tho in the Mekong Delta. Originally all field advisers were assigned to the MACV Staff Judge Advocate's office, with duty stations in their respective corps areas. Later, the judge advocate advisers for I, II, and IV Corps were assigned to the Regional Assistance Command headquarters in those corps areas. This assignment made the countrywide judge advocate advisory program less cohesive, but lines of communication were maintained. The extent to which judge advocate field advisers were actually able to devote their efforts to advisory work varied considerably from time to time and place to place, depending to a great extent on the relationship between the judge advocate adviser and the U.S. commander for whom he worked, and on the legal needs of the local U.S. command at the time.
Over the years there was a marked contrast between the advisory work in Saigon and the activities of the field advisers in the outlying areas. In Saigon, advisory efforts were focused on such areas as the organization, staffing, and budgeting of Vietnamese legal institutions, particularly the Directorate of Military justice; the collection, translation, and indexing of Vietnamese legal materials; educational programs for the Vietnamese legal community; monitoring the military courts and prisons; and trying to obtain materials to upgrade Vietnamese legal facilities and the military prison in Saigon. The judge advocate advisory work in Saigon included collecting and disseminating Vietnamese legal materials, answering specific questions pertaining to Vietnamese and American law, preparing staff studies, and participating as members of various MACV and joint MACV-Vietnamese committees. One example of the last category was the MACV judge advocate adviser's participation as a member of a joint committee which developed a national mobilization study for the Vietnamese armed forces in the fall of 1972.
One of the most vigorously pursued and successful long-range advisory efforts was the educational program, which was developed during the tours of Colonels Durbin and Westerman. From the early sixties until March 1973 members of the MACV Staff Judge Advocate's office continued to teach courses in government and law at Saigon University and to tutor in English Vietnamese lawyers who were then, or later became, Supreme Court justices, Minister of Justice, Minister of Interior, or key Directorate of Military justice personnel.
The Staff Judge Advocate was successful in obtaining authorization for members of the Directorate of Military justice and other government officials to receive assignments and grants for study in the United States. For example, in 1965, the Prosecutor and Assistant Prosecutor of the Saigon Court visited the United States as part of the Foreign Leader and Specialist Program of the Department of State. Such visits were highly successful and were continued over the years to allow a representative cross section of the Vietnamese legal community to observe American legal institutions. Annual orientation tours were also programed for key personnel of the Directorate of Military Justice to visit U.S. military and civilian courts, schools, and prisons.
A program was also initiated whereby selected officers of the Directorate of Military justice were sent to The Judge Advocate General's School in Charlottesville, Virginia, as members of one of the school's eight-week basic courses or nine-month advanced courses in military law. An average of two language-qualified officers a year
were sent to Charlottesville; the highest point was reached in January 1970 when four officers qualified for attendance. Also in 1970, an officer of the Directorate of Military Justice was accepted by Tulane University to attend a one-year program in comparative jurisprudence leading to an LL.M. degree. This assignment was the culmination of efforts by the Judge Advocate 'Advisory Division to send a deserving member of the Directorate of Military Justice to America for advanced legal studies.
Educational programs were not limited to sending Vietnamese attorneys to the States. Efforts were also made to increase the awareness of the Vietnamese to the importance of law within their own military system. As part of the continuing efforts to make American legal publications available to the Vietnamese, the Directorate of Military justice was placed on the subscription list for The Army Lawyer, the Military Law Review, and the Judge Advocate Legal Service periodicals. The U.S. Supreme Court Reporter was made available to the Vietnamese Supreme Court. In early 1970 the Ministry of Defense authorized the Directorate of Military justice to start publication of a semiannual Military Law Review. This publication had been recommended by the Advisory Division to fill the need for dissemination of information on changes and progress in the Vietnamese legal system. The MACV judge advocate staff regularly contributed articles on American military law to this publication.
A major step forward was taken in mid-1969 with the initiation of a law curriculum for cadets at the Vietnamese Military Academy at Dalat and the assignment of one member of the Vietnamese Military Justice Corps to the academy as professor of law. Previously there had been only occasional legal lectures and no regular legal instruction at the academy, which is the Vietnamese equivalent of West Point. In November 1971 the Directorate of Military Justice opened its own school for training military lawyers, administrative personnel, and court clerks. The school was located in Saigon and was staffed by two Directorate of Military Justice officers-Major Tran Lai Mien, who had attended the advanced course of The Judge Advocate General's School at Charlottesville, and Major Tran Hua Dinh, who had recently returned from comparative law studies at Tulane University.
Judge advocate advisers also remained active in legal society and educational programs in Saigon, particularly the educational seminars sponsored by the Vietnamese-American Association. A Saigon chapter of the Federal Bar Association was formed, and held periodic meetings to which all U.S. attorneys in the country were invited. The observance of May 1st as Law Day grew from its simple beginning in 1965 to an annual tradition where all U.S. and Vietnamese attorneys who could make the trip came to Saigon for appropriate legal pro-
grams and festivities. The 1972 Law Day reception, held at the U.S. Embassy, was hosted by Ambassador Ellsworth Bunker and General Creighton W. Abrams, and was attended by U.S. and Vietnamese attorneys from all parts of Vietnam.
The Field Advisers
The work of the judge advocate field advisers was quite different from the legal advisory activities carried on in Saigon. The field adviser was the only person in his corps area doing legal advisory work with the Vietnamese. Field advisers did not have a staff to assist them, and available library facilities were apt to be minimal. The U.S. and Vietnamese officers with whom the field advisers dealt were usually considerably older and ranked above the judge advocate advisers. Keeping informed of developments in the corps area which were of interest to the Staff Judge Advocate, as well as establishing contacts in U.S. and Vietnamese military units and civilian agencies, usually required considerable traveling by the field MACV adviser. The language difference was a problem; however, many Vietnamese judge advocates spoke French or some English, and interpreters were usually available.
Living and working conditions and daily activities of the field advisers varied widely. Some advisers were able to work with their Vietnamese counterparts on a daily basis and devoted most of their time to advisory activities; others, of necessity, functioned primarily as command judge advocates for the U.S. advisory headquarters to which they were assigned. The success of a field adviser's tour of duty depended on many factors-his own drive, personality, and ingenuity; the personality of his counterpart and the adviser's ability to establish rapport with him; the support given the adviser by the local U.S. command; and the legal needs of the area at that particular time. The work of the field advisers was innovative in a very real sense in that each adviser was required to discover and act on problem areas in which he could most effectively render assistance. Seldom was there a book solution for the problems he encountered.
Advisory activities involved such diverse legal areas as Vietnamese military justice procedures, questions arising from the Pentalateral Agreement, operation of the re-education centers, provincial jails and military prisons, the Vietnamese claims program, the National Police, the military police, desertion control, resources control, security programs, and various aspects of the pacification program. Often the most pressing advisory problems were more practical than legal in nature, such as arranging transportation for Vietnamese legal officers, providing storage for records of trial, or obtaining material and equipment to improve the military courts and prison facilities.
It was not unusual for incidents with potential legal implications
to occur in Vietnam, involving business enterprises, government agencies, and individuals from several different nations. Questions of any complexity, or with potentially serious legal consequences, were referred to the MACV Staff Judge Advocate in Saigon, but the field adviser was sometimes the initial legal point of contact and the investigator of fact for such incidents.
A feeling for the wide range of activities which fell within the work of the judge advocate field advisers can be gained from an account of some of the experiences of Captain John T. Sherwood, who was the first judge advocate adviser for II Corps from August 1965 until May 1966. Shortly after Captain Sherwood assumed his duties, a U.S. B-57 bomber crashed in the commercial section of downtown Nha Trang, causing several casualties and extensive damage to houses and shops in the area. While the legal authority of the U.S. command to pay claims for such "combat" damage was in doubt, the MACV Staff judge Advocate nevertheless moved swiftly to assess the damage and to assist those who had suffered physical and financial injury to submit requests for compensation. As part of this effort, the judge advocate field adviser spent two days working with a committee of Vietnamese citizens to inspect damage in order to determine an equitable amount for settlement in accordance with applicable Vietnamese standards. The adviser also conferred with the Nha Trang Provost Marshal concerning the conduct of some National Police, who allegedly were ineffective in preventing looting after the crash. The judge advocate adviser took part in negotiations between the French-owned electric company that serviced Nha Trang (the Eastern Construction Company) and a representative of the U.S. 5th Special Forces Group concerning liability for property damage caused by a Filipino national employed by the company who drove a Civilian Irregular Defense Group vehicle into an electric company transformer. (The U.S. Special Forces trained and financed the Civilian Irregular Defense Group.)
Captain Sherwood's activities were not confined to Nha Trang. Indeed, in August and September of 1965 he traveled extensively: to Qui Nhon to visit the province jail and observe the status of the Vietnamese military police and military justice instructions in units of the Regional Forces and Popular Forces; to Dalat to visit the Military Academy, the Command and General Staff School, and the U.S. Overseas Mission province representative; and to Ban Me Thuot to meet the sector adviser, the U.S. 23d Division staff, and the U.S. Overseas Mission representative. At Ban Me Thuot Captain Sherwood attended an oath of allegiance ceremony whereby 300 dissident Montagnards returned to the government side. On 17 September he flew to Saigon to confer with the Director of Military justice and the Vietnamese judge Advocate staff. He spent 23 to 25 September
inspecting Regional Forces and Popular Forces training at Tuy Hoa and observing the pacification program in Phu Yen Province. At the end of September Captain Sherwood visited Vietnamese II Corps headquarters at Pleiku, where he met the corps legal staff and arranged for the shipment of records between the corps headquarters in Pleiku and the Military Court in Nha Trang. While at Pleiku, Captain Sherwood also conferred with U.S. commanders on military justice problems, redrafted a provost marshal directive concerning the confiscation of military payment certificates from Vietnamese employees of U.S. installations, discussed the desertion problem of the Regional Forces and Popular Forces with U.S. advisers, and visited a Vietnamese refugee camp.
Although such a great amount of travel was not required of Captain Sherwood every month, he was constantly provided with new and interesting experiences. He reviewed a treatise on Vietnamese law written in English by a Vietnamese judge advocate officer. He represented two U.S. soldiers charged with rape, attempted rape, robbery, and assault at a pretrial investigation. He visited the Khanh Hoa Military Prison, the Duc My National Training Center for Vietnamese army recruits, and the Song Mao National Regional Force Training Center. He conferred in Bangkok with the staff judge advocate of the joint U.S. Military Advisory Group, Thailand, on the legal status of U.S. military personnel visiting in Thailand, and on the feasibility of an advisory effort for military lawyers in Thailand. He made three parachute jumps with the first Montagnards ever to be airborne-trained. He participated in a political warfare exercise in which leaflets were dropped from the air over territory controlled by the North Vietnamese. He made a visit to the Khanh Hoa Province jail. He made a detailed study of the methods used by U.S. units in II Corps for handling captured enemy personnel. (To gather facts for this study, he made a visit to the 1st Air Cavalry Division (Airmobile) at An Khe, to the 3d Brigade, 25th Infantry Division, at Ban Me Thuot and Pleiku, and to the 1st Brigade, 101st Airborne Division, at Phan Rang and Tuy Hoa. He made an effort to determine to what extent cards on treatment of prisoners of war were being disseminated by the Vietnamese Army and to what extent the contents of the cards were understood by the Vietnamese troops, many of whom were illiterate.)
As can be seen from the great diversity of the activities detailed above, it is difficult to characterize the work of the judge advocate field advisers. Each adviser determined his own program through analysis of the legal needs and the opportunities existing at his duty station at the time of his tour. Early advisers, like Captain Sherwood, spent a great deal of time ascertaining conditions in their respective corps areas and building an identity for themselves while working for
acceptance of the legal advisory program. As the number of U.S. advisers and troops throughout Vietnam increased and the legal advisory program became established, later judge advocate advisers were able to devote their efforts to other matters. But each field adviser had to gain anew the confidence of his Vietnamese counterpart and of the U.S. forces with whom he dealt, and each had to rely on his own tact, resourcefulness, and legal ability in order to accomplish his mission successfully.
The Prison Advisory Program
One facet of the advisory program for which neither civilian nor military legal training had prepared the judge advocate advisers of the Military Assistance Command was working with the Vietnamese military prison system. In the American Army, military confinement facilities were administered by the Military Police Corps. In the Vietnamese system, as in the Chinese and some other systems, the military prisons were administered by the Military Justice Corps. Since MACV judge advocates were advisers to the Directorate of Military Justice, they also became advisers to the military prisons. One such prison was located in each of the four corps areas, in conjunction with the military court serving that area. The term military prison did not include the prison on Con Son Island, which was considered a civilian prison, even though it contained political prisoners who could have been tried by military courts.
The Vietnamese military prisons were pretrial detention centers only. The great majority of prisoners were charged with desertion. The average deserter spent about three months in confinement awaiting his trial; one charged with more complicated and serious offenses might spend a year or more in pretrial confinement. Time spent in pretrial confinement was credited toward service of sentence, and deserters and petty criminals sentenced to confinement upon conviction were usually remanded to an army labor battalion to serve the remainder of their terms. Those convicted of more serious crimes were sent to civilian prisons to serve their sentences. Each of the military prisons was under the supervision of the chief prosecutor of the military court for the corps area. The Directorate of Military Justice officials who operated the prisons were not attorneys; neither, for the most part, were they trained prison specialists. Prison conditions tended to be inferior in comparison to standards one would expect in American military prisons, but life in Vietnamese military prisons was not appreciably more spartan than that of many civilians or of soldiers in the field.
Judge advocate advisory efforts for the military prisons fell into two general categories: obtaining sorely needed building materials
and supplies, and attempting to provide a certain degree of administrative guidance and technical expertise.
The material needs that existed for the prison system are illustrated by the advisory experience with the Da Nang military prison in 1972. Prior to 1970 the prison had been located in Hue. During Tet of 1968 the prison, along with many other U.S. and Vietnamese facilities in and around the city, came under siege by the Communists. The prison was not overrun, but after the Tet offensive a decision was made to move it to Da Nang, which was considered more secure. The move to Da Nang would also bring about a considerable increase in administrative efficiency, since both the military court and the military field court had been moved to Da Nang. Several sites near Da Nang were considered, and rejected as being insufficiently secure from enemy attack. Finally, an abandoned engineer compound in east Da Nang was selected as an acceptable site.
The move was begun in 1970, and the facility was officially opened on 1 July 1971. The new prison consisted of eight stucco buildings surrounded by barbed wire. There was no front gate for the outer compound; there were no defensive fortifications, no sleeping facilities for cadre or prisoners, no messing facilities, no potable water, and no electricity. Slowly, prison officials and the judge advocate adviser began making improvements, most of which were wiped out by a typhoon in October 1971. As U.S. units in I Corps began to move out of the line and return to the United States, however, surplus and scrap supplies and materials became available through advisory channels.
From January until June 1972 approximately seventy-five truckloads of building materials, steel cargo (CONEX) containers, furniture, and items of military clothing and equipment were obtained for the prison. The great bulk of the material acquired was considered not reusable by the American forces, but Vietnamese ingenuity found practical uses for even the most unlikely pieces. For example, a front gate was fashioned by welding together discarded pieces of pipe and a huge aluminum sliding warehouse door. The materials acquired were used to construct fourteen defensive bunkers, sleeping platforms for 1,200 prisoners, a stage, a guardhouse, and a handicraft office, and to furnish the mess hall, a visiting hall, a conference hall, a dispensary and doctor's office, a canteen, a cadre lounge and cadre barracks, and the prison administrative offices. Acquisition of a water trailer and water tank enabled potable water to be transported and stored for use in the kitchen. Guards were furnished with helmets, flak jackets, web gear, and rain gear.
Encouraged by the success of the self-help projects, prison officials were able to secure from a construction company a donation of 400
CHAPEL OF THE MILITARY PRISON AT DA NANG. Judge advocates helped to procure building materials.
bags of cement, which were used to construct a chapel and a pagoda for use by the prisoners and cadre. Ingenuity on the part of the prison commandant and marketing assistance from the judge advocate adviser enabled the prison to increase the assets of the prison general purpose fund by 65 percent in a three-month period through the sale of woven straw lobsters. Other handicraft projects were tried on an experimental basis, and a vegetable garden was started. The persistent efforts of the prison commandant and the judge advocate adviser to work through Vietnamese logistical channels were rewarded when a doctor was assigned to work at the prison on a regular basis, and when a generator was sent to the prison, which previously had been without electric power. An allocation of funds from Saigon made possible the start of construction of two administration buildings, several latrines, and a kitchen in August 1972, by which time the Da Nang prison was well on its way to becoming a model institution in the Vietnamese military penal system.
While the day-to-day work with the prisons was carried on by the field advisers, the MACV Staff Judge Advocate in Saigon was also active in obtaining materials for the prisons and in devising ways to improve the administration of the prison system. Over the years, large quantities of construction materials were obtained, enabling the Vietnamese to complete such major projects as an evidence building at the Saigon Military Prison and an annex to the Saigon Military Prison, both completed in 1970, and an evidence building at the Nhah Trang Military Prison in 1971. Smaller projects, such as the construction of sleeping platforms, were carried on continuously as material became available. Some major projects, such as the construction of the fourth and newest military prison at Can Tho in the spring of 1970 and an additional cell block at the Saigon Military
Prison in 1971, were funded through government channels.
Although the Directorate of Military justice was responsible for the operation of the military prisons, few of its officials had any formal training or previous experience in penal administration. Because of the high wartime desertion rates, the military prisons were often overcrowded, and prison populations were subject to fluctuations of as much as 50 percent over a short period, depending on the time of the year, tactical conditions in the field, and periodic amnesty programs instituted by the Vietnamese government to relieve overcrowding in the prisons and to return troops to the field. It was not unusual for as few as fifty guards and administrative cadre (a total of all shifts, including officers) to control over 1,200 prisoners. Prisoners were essentially self-regulating within the compounds. Escape attempts were surprisingly few, and discipline was generally excellent. The average allocation for prisoner support in 1972 was 10¢ (U.S.) per prisoner per day. Given these conditions, problems of prison administration were inevitable.
Officers from the MACV Staff Judge Advocate's office in Saigon periodically visited the military prison in each corps area, monitoring progress and co-ordinating advisory programs with the field advisers. Recognizing the need for more professional help in the prison advisory program, Colonel Robert K. Weaver, the MACV Staff Judge Advocate, in 1970 was able to augment the Advisory Division staff by having a U.S. Military Police Corps officer assigned as a special adviser to the pretrial confinement facilities under the Vietnamese Directorate of Military Justice. Following an inspection of four prisons in November 1970 the American military police adviser prepared an administrative checklist for the entire functioning of the confinement facilities, covering custody, control, and confinement practices pertaining to health, comfort, and sanitation. The checklist was translated into Vietnamese and delivered to the Directorate of Military Justice for use in a three-month sampling which would indicate areas of needed improvement and facilitate the development of standard operating procedures.
Colonel Weaver arranged visits to Vietnamese military prisons by U.S. staff members with expertise in the operation of confinement facilities, such as the MACV J-1, the MACV Command Surgeon, and the chief of the Provost Marshal Prisoner of War Division. After these visits the observations and recommendations of the members were compiled, analyzed, and forwarded to the Director of Military justice and the Minister of National Defense. In 1971 a group of twelve Vietnamese prison officials and noncommissioned officers was conducted on a detailed tour of both the old and new U.S. Army confinement facilities at Long Binh post. In June 1972 plans were made for formal school training and subsequent on-the-job training
at the Military Police School at Fort Gordon, Georgia, for several Directorate of Military Justice prison officials in fiscal year 1974.
When the Paris Agreement on Ending the War and Restoring Peace in Vietnam entered into force the judge advocate advisory role came to an end. Legal advisory activities in Vietnam had ranged from conferring with government ministers in Saigon to inspecting troop training in Tuy Hoa and obtaining lumber for a prison in Da Nang. Advisory "subjects" are not found in any law school curriculum, and coping with the diversity of advisory activities challenged the legal talents of the U.S. military attorneys who participated in this fascinating work. Each undertaking was important in assisting the Vietnamese to improve and strengthen their legal system.