William L. Calley, Jr., Cross-Appellant v. Howard H. Callaway, Etc., Etc., Cross-Appellees

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 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. 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

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 charged6 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 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 landed his craft near the ditch, and had a discussion with Calley. The pilot was able to evacuate some of the villagers from the scene. After speaking to the pilot, Calley returned to the ditch and resumed the killing, stating, "I'm the boss here." In all, Calley supervised and participated in killings at the ditch for about forty-five minutes to an hour, and personally expended between 10 and 15 magazines of ammunition. Calley was charged with the murder of not less than 70 human beings at the ditch; the court members found him guilty of the murder of not less than 20 persons.

After the incident at the ditch, Calley and Specialist Fourth Class Sledge encountered a forty- to fifty-year-old man dressed in the white robes of a monk. After questioning the man whether he was a Viet Cong, Calley shot the man in the face, blowing half his head away. The court members found Calley guilty of the premeditated murder of one male human being, as charged.

Sledge testified that immediately after the shooting of the monk,

Someone hollered, "there's a child," you know, running back toward the village. Lieutenant Calley ran back, the little I don't know if it was a girl or a boy but it was a little baby, and he grabbed it by the arm and threw it into the ditch and fired.

Sledge stated he observed this from a distance of 20-30 feet. He testified one shot was fired by Calley at the child from a distance of 4 or 5 feet, but did not see whether it struck. Calley was charged with the premeditated murder of one human being approximately two years old; the court members found him guilty of assault with intent to commit murder on this charge. A total of two to four hours had elapsed between the time the attack on My Lai (4) began and the killing of the villagers was completed.

At trial and on appeal to the military courts, Calley's participation in most of the killings was conceded those at both the trail and the ditch. Calley admitted ordering Meadlo to kill the villagers at the trail, and admitted that he fired into the people at the ditch with his gun's muzzle within 5 feet of the people kneeling or squatting there. He denied killing the monk, stating he merely "butt-stroked" the man in the face with the butt of his rifle, and also denied killing the two-year-old child. The major emphasis of Calley's defense was that he was not legally responsible for the killings because there was an absence of malice on his part, that he thought he was performing his duty in the operation, having been ordered by Captain Medina to kill everyone in the village. Calley's principal defense, therefore, was his claim that the night before the attack on My Lai (4) and two times by radio while he was present in the village, he had received orders from Captain Medina to kill all villagers the soldiers encountered. Captain Medina, who was called as a witness at the request of the court members, stated that during the briefing on the night of March 15 he was asked by someone specifically whether women and children were to be killed. He testified that his answer was:

No, you do not kill women and children. You must use common sense. If they have a weapon and are trying to engage you, then you can shoot back, but you must use common sense.

There was considerable dispute at the trial about this statement. Twenty of the 27 persons who were members of Calley's platoon on March 16 testified at trial, along with others who were presented at the briefing. Some stated that Medina's answer to the question was "Yes, it means women and children," while most of these witnesses, however, had no recollection of orders by Medina at the briefing to kill women and children. The findings of guilty of the court members resolved what was a classic jury issue.

Calley further claimed that he had received orders by radio directing him to dispose of the Vietnamese and get on to other duties during the day of March 16 while he was in My Lai (4). Calley's testimony in this regard was not substantiated by the two persons who acted as radio operators to Captain Medina on March 16. One of the operators stated he had no recollection either way regarding such orders. The other operator stated positively that no orders to kill or waste civilians went out over the unit radio to Calley. Moreover, even if Calley had received the orders as claimed, he would not necessarily have been exonerated. The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense. Thus, the military jury could have found either that the alleged order to kill was not issued, or, if it was, that the order was not a defense to the charges. The military courts found ample evidence to support either hypothesis.8

With this review of the facts, we turn to the issues on appeal. District Judge Elliott's extensive written opinion concluded that Calley was entitled to a writ of habeas corpus for four principal reasons: (1) prejudicial pretrial publicity concerning the My Lai incident and Calley's participation therein deprived him of an opportunity to receive a fair and impartial trial; (2) the military judge's failure to subpoena certain witnesses requested by the defense deprived Calley of his right of confrontation and compulsory process and deprived him of due process; (3) the refusal of the House of Representatives to release testimony to the defense taken in executive session in its My Lai investigation deprived Calley of due process; and (4) the Charges, Specifications and Bill of Particulars under which Calley was tried did not adequately notify him of the charges against him nor fully protect him against possible double jeopardy.

II. Scope of Review of Court-Martial Convictions

We must first consider the extent to which a federal court is empowered to review court-martial convictions on petitions for habeas corpus. The Government contends that the district court exercised an impermissibly broad scope of review of Calley's claims.9 Relying on Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), the Government argues that review by the federal courts is complete after a determination that the military courts have fully and fairly considered Calley's claims, and that, since that has been accomplished by the military courts, further review by way of habeas corpus proceedings is not appropriate.

A brief historical outline is helpful to a determination of this question.10 The first military habeas corpus case to reach the Supreme Court was Ex parte Reed, 100 U.S. 13, 25 L.Ed. 538 (1879).11 Reed held that a federal civil court's inquiry into a military court-martial conviction could extend only so far as to ascertain whether the military court was properly vested with jurisdiction "over the person and the case. . . . Having had such jurisdiction, its proceedings cannot be collaterally impeached for any mere error or irregularity, if there were such, committed within the sphere of its authority." 100 U.S. at 23, 25 L.Ed. at 539. Subsequent Supreme Court decisions followed the jurisdictional test and emphasized that the scope of inquiry for federal courts was limited to whether the court-martial was properly constituted, whether it had jurisdiction over the person and the offense charged, and whether the sentence was authorized by law. See, e. g., Collins v. McDonald, 258 U.S. 416, 42 S.Ct. 326, 66 L.Ed. 692 (1922); McClaughry v. Deming, 186 U.S. 49, 22 S.Ct. 786, 46 L.Ed. 1049 (1902); Johnson v. Sayre, 158 U.S. 109, 15 S.Ct. 773, 39 L.Ed. 914 (1895); In re Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890).12 In general, federal courts would not consider due process attacks on court-martial convictions in habeas proceedings if it appeared that the military court properly possessed jurisdiction when it made its decision.

The jurisdictional test, however, was not limited to military habeas corpus cases, but extended also to criminal convictions in civil courts. Mr. Justice Hughes stated in In re Gregory, 219 U.S. 210, 31 S.Ct. 143, 55 L.Ed. 184 (1911) that "(t)he only question before us" in a habeas case is whether the court "had jurisdiction to try the issues and to render the judgment." Id. at 213, 31 S.Ct. at 143. In Knewel v. Egan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036 (1925), the Court noted that habeas corpus was a means to determine whether a person "is restrained of his liberty by judgment of a court acting without jurisdiction." In reiterating that jurisdiction was the proper inquiry, the Court held that "the judgment of state courts in criminal cases will not be reviewed on habeas corpus merely because some right under the Constitution of the United States is alleged to have been denied to the person convicted." 268 U.S. at 447, 45 S.Ct. at 524-525. See also Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101 (1910); In re Moran, 203 U.S. 96, 27 S.Ct. 25, 51 L.Ed. 105 (1906); Dimmick v. Tompkins, 194 U.S. 540, 24 S.Ct. 780, 48 L.Ed. 1110 (1904); Storti v. Massachusetts, 183 U.S. 138, 22 S.Ct. 72, 46 L.Ed. 120 (1901). Thus, "(h)abeas corpus was, prior to World War II, a limited form of relief in both the civilian and the military areas, with the scope of inquiry limited to jurisdiction of the tribunal to hear a given case and render judgment. Procedural considerations rulings on challenges, pleas, admissibility of evidence as well as more substantial due process questions were not reviewable on collateral attack." Note, supra, 69 Colum.L.Rev. at 1259.

In the late 1930's, however, the Supreme Court first expanded and subsequently abandoned the jurisdiction rubric. The Court began to uphold habeas attacks on federal and state convictions obtained in violation of federal constitutional rights even where the courts possessed jurisdiction in the traditional sense. In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the Court held that jurisdiction, though present at the beginning of the trial, was "lost" in the course of the trial by the failure to provide counsel for the accused. The Court said that a violation of the Sixth Amendment "stands as a jurisdictional bar to a valid conviction and sentence . . .." 304 U.S. at 468, 58 S.Ct. at 1024 (emphasis added). Johnson altered the prior rule while jurisdiction was still nominally the test, the meaning of jurisdiction was expanded to include due process defects in trial proceedings. Four years later, the Supreme Court finally discarded the jurisdiction test, and in Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942), explicitly stated that jurisdiction alone was no longer the sole consideration.13 The Court held that the Great Writ "extends also to those exceptional cases where the conviction has been in disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights." 316 U.S. at 105, 62 S.Ct. at 966. In House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739 (1945), the holding in Waley, a federal habeas corpus case, was applied to habeas review of state court convictions. See Hart, The Supreme Court 1958 Term, 73 Harv.L.Rev. 84, 105 (1959). Thus, in civil cases involving both state and federal petitioners, the permissible inquiry in habeas corpus was extended beyond the question of jurisdiction to include also a determination whether the conviction was in disregard of the constitutional rights of the accused.

World War II provided an important impetus for federal courts to broaden habeas corpus review of military cases. When millions of persons suddenly became subject to military justice, greater concern seemed essential. As Chief Justice Warren said in this regard, "When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question." Warren, supra, 37 N.Y.U.L.Rev. at 188. See also Generous, Swords and Scales: The Development of the Uniform Code of Military Justice 14-15, 167-169 (1973). Military law thus had a breadth and impact not previously possessed, requiring greater supervision over the actions of courts-martial.14 More importantly, there was public concern over the harsh justice and severe sanctions employed by the military during the war. See Bishop, supra, at 117-118; Generous, supra, at 14-21.15

Thus, federal courts, having expanded collateral attack in civilian habeas corpus cases, were confronted with new pleas by military defendants that the courts give cognizance to allegations that their convictions were invalid by virtue of constitutional, if not jurisdictional, deficiencies.16 The stage was thus set for a reevaluation by the Supreme Court of the proper response by federal courts to habeas corpus attacks on court-martial convictions; Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953), was that reevaluation.17

The petitioners in Burns had been found guilty of rape and murder and sentenced to death by court-martial. Burns alleged in his habeas petition several deprivations of constitutional rights, contending that the military had coerced his confession, suppressed evidence favorable to him, denied him effective counsel, detained him illegally and created an atmosphere of terror and vengeance not conducive to a fair decision. See 346 U.S. at 138, 73 S.Ct. at 1047. The court of appeals affirmed denial of the writs, but only after a detailed review of the facts and the court-martial transcripts. Burns v. Lovett, 1952, 91 U.S.App.D.C. 208, 202 F.2d 335.

The Supreme Court affirmed the denial of habeas corpus relief, but stated that the circuit court had "erred in reweighing each item of relevant evidence in the trial record . . . ." 346 U.S. at 146, 73 S.Ct. at 1051. A plurality of the court18 (Chief Justice Vinson, Justices Burton, Clark and Reed) agreed that the constitutional guarantee of due process was meaningful enough to protect both soldiers and civilians "from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness . . . ." Id. at 142, 73 S.Ct. at 1049. Nonetheless, in reviewing court-martial convictions to ascertain whether due process rights had been abridged, the Court stated that "in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases." Id. at 139, 73 S.Ct. at 1047. The Court stated that "when a military decision has dealt fully and fairly with an allegation raised in that application (for habeas corpus), it is not open to a federal civil court to grant the writ simply to re-evaluate the evidence." 346 U.S. at 142, 73 S.Ct. at 1049.19 Its review of the case showed that "the military courts have heard petitioners out on every significant allegation which they now urge." Id. at 144, 73 S.Ct. at 1050. The Court concluded:

Accordingly, it is not the duty of the civil courts to repeat that process to re-examine and reweigh each item of evidence of the occurrence of events which tend to prove or disprove one of the allegations in the application for habeas corpus. It is the limited function of the civil courts to determine whether the military have given fair consideration to each of these claims. (citation omitted) We think they have.

Id. (emphasis added).

Burns thus announced a scope of review in military habeas cases broader than the old jurisdictional test, but narrower than that in state and federal habeas cases. Federal courts have interpreted Burns with considerable disagreement.20 Soon after the decision in Burns, we noted the "uncertain state of the law" regarding the proper scope of review. Bisson v. Howard, 5 Cir., 1955, 224 F.2d 586, 589-590, cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 803. More recently we said that while Burns allowed collateral attack on courts-martial, "the scope of that review was left uncertain." Mindes v. Seaman, 5 Cir., 1971, 453 F.2d 197, 201. We have stated that, since Burns, "the scope of review has been considerably broadened," Betonie v. Sizemore, 5 Cir., 1974, 496 F.2d 1001, 1005; that "(c)ourt-martial convictions alleged to involve errors of constitutional proportion have consistently been held to be subject to court review." Mindes v. Seaman, supra, 453 F.2d at 201. But we have also stated that there is a "very limited field in which the civilian courts can review court martial proceedings," Bisson v. Howard, supra, 224 F.2d at 587, that "(h)abeas corpus review of convictions by court-martial is limited to questions of jurisdiction (citation omitted), and the limited function of determining whether the military has given fair consideration to petitioners' claims, (citing Burns )." Peavy v. Warner, 5 Cir., 1974, 493 F.2d 748, 749. Other circuits are divided on the proper scope of review.21

With this background we summarize our view of the proper scope of review.

The cited cases establish the power of federal courts to review court-martial convictions to determine whether the military acted within its proper jurisdictional sphere. We are more concerned here, however, with the extent to which federal courts may review the validity of claims that errors in the military trial deprived the accused of due process of law, when the military courts have previously considered and rejected the same contentions. We conclude from an extensive research of the case law that the power of federal courts to review military convictions of a habeas petition depends on the nature of the issues raised, and in this determination, four principal inquiries are necessary.

1. The asserted error must be of substantial constitutional dimension. The first inquiry is whether the claim of error is one of constitutional significance, or so fundamental as to have resulted in a miscarriage of justice. Most courts which have interpreted Burns to allow review of nonjurisdictional claims have given cognizance only to assertions that fundamental constitutional rights were violated.22 The premise that we cannot review a military conviction without substantial claim of denial of fundamental fairness or of a specific constitutional right is strengthened by the holding in United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), in which the Supreme Court held that the Court of Claims erred in considering petitioners' assertions where only an error of law (an asserted violation of the Jencks Act, 18 U.S.C. § 3500), rather than a constitutional defect or due process violation, was present. See 393 U.S. at 351-352, 352-353, 356, 89 S.Ct. at 531, 532, 533-534. As the Supreme Court has commented, "The writ of habeas corpus has limited scope; the federal courts do not sit to re-try . . . cases de novo but, rather, to review for violation of federal constitutional standards." Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1 (1972). See also Cupp v. Naughton, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973); Donnelly v. DeChristoforo, 416 U.S. 637, 642-643, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); Ross v. Wainwright, 5 Cir., 1971, 451 F.2d 298, 301, cert. denied, 409 U.S. 884, 93 S.Ct. 98, 34 L.Ed.2d 141 (1972); Young v. Alabama, 5 Cir., 1971, 443 F.2d 854, 855, cert. denied, 405 U.S. 976, 92 S.Ct. 1202