Captain Thomas Strassburg, a judge advocate serving with the 101st Airborne Division, steps off a helicopter in Vietnam circa 1971 (Photo courtesy of JAGC’s Regimental Historian & Archivist’s office).
A Lawyer’s Day in Vietnam
By Irvin M. Kent, Jon N. Kulisli, Ned E. Felder, and Herbert Green
Vietnam 1968
Does the military need lawyers in Vietnam? Repeatedly asked this question by their fellow lawyers in the United States, the authors, who comprise the legal staff of an Army headquarters in Vietnam, determined to let American lawyers decide for themselves. The authors selected in advance a day on which each would keep notes on his activities. This article, which first appeared more than 50 years ago in the American Bar Association Journal, is a description of that day—March 11, 1968.1
Do Judge Advocates practice law? Why do we need lawyers in Vietnam?
These are two questions all four of us have frequently heard from fellow lawyers in the states. Perhaps this, the outline of one of our days in Vietnam, may provide an answer.
We constitute the lawyer complement of the Office of the Staff Judge Advocate, Headquarters, II Field Force, and Vietnam. This is a corps-level headquarters that has operational control of several United States divisions and many nondivisional units and is responsible for military operations in the Vietnamese III Corps Tactical Zone, which includes the most heavily populated areas of the country and surrounds its capital city. We are authorized six lawyers, but only four are assigned. The office is also staffed by a warrant officer for office administration, a sergeant major as chief legal clerk, a sergeant first class as claims clerk, and three specialists who are, respectively, our court reporter, stenographer, and clerk typist. The enlisted men also take their share of duty on perimeter guard and must be as handy with their rifles as with their typewriters. The captain and our warrant officer also take their turns as officer of the guard for the headquarters area.
We represent the Bars of California, Colorado, Massachusetts, South Carolina, and Texas as well as of several federal courts. We received our law training at Georgetown, Harvard, South Carolina State, and Texas. Three of us are career military men and one is fulfilling his military obligation. The three career officers, all ROTC graduates, have all had military service in other branches—Armor, Finance, Infantry, or Ordnance—before becoming judge advocates. Two of us are married with a combined total of six children. While all of us perform other duties, as required, Lieutenant Colonel Kent is assigned as staff judge advocate, Major Kulish as deputy and also as chief, international affairs, and legal adviser to the units located in and around the headquarters company, Major Felder as trial counsel (prosecutor) of the general court and also as claims officer, and Captain Green as defense counsel and legal assistance officer.
For this description of one of our days in Vietnam, we chose in advance a day that turned out to be neither our lightest nor our heaviest. We deliberately picked a day on which no general court-martial was scheduled since we suspect that everyone will acknowledge that the prosecution or defense of a felony is the practice of law. It was just one of the 365 days of our tour here—the office is open and manned seven days a week from 7:30 A.M. to 6 P.M. Our mission is to provide total legal services for the commanding general, his staff and subordinate commanders and all other members of this command.
This was the day—Monday, March 11, 1968.
The Staff Judge Advocate.
After a quick check of the office and a short conference with his deputy, the staff judge advocate, Colonel Kent, accompanied by the chief legal clerk, left by helicopter for the base camp of one of the II Field Force artillery groups and elements of two of its battalions. They had been alerted to notify all personnel that a legal assistance officer would be available. Every trip away from the headquarters is also a legal assistance trip. We have a one briefcase legal assistance kit which contains interview cards, form clauses for wills and powers of attorney, income tax forms and instructions, and applications for military ballots.
A Question of Prompt Justice.
This visit was based on a complaint by a Soldier of an apparently undue delay in the disposition of charges against him. These allegations, if substantiated, would raise the issue of the right of speedy trial.2 Colonel Kent wished to discuss this with the group commander and to indicate that if investigation revealed that these allegations were true, the best interests of justice might be served by a dismissal of the charges. Further, as on all such trips, he wanted to reemphasize some of the rules concerning the imposition of nonjudicial punishment3 and to emphasize the Army claims program, particularly with regard to losses of personal property caused by hostile action.4 A supply of claims forms was taken along and distributed to the units with instructions for their use. The staff judge advocate has authority for the approval of such claims up to $1,000. By 11 A.M., these matters accomplished, Colonel Kent set up shop for legal assistance. ln the meantime the chief legal clerk was providing instruction on the administrative processing of courts-martial papers, non judicial punishment actions, and claims investigations for the clerical personnel of group headquarters. Except for a thirty-minute lunch break the legal assistance program continued until 3 P.M. During this time there were five requests for assistance on federal income tax problems. Four of these were relatively simple inquiries pertaining to combat zone pay exclusions, but the fifth came from a [S]oldier who wanted to complete his return for 1967. Rapid calculations revealed that he was due a substantial refund, and therefore he was advised to file immediately. There were two requests for powers of attorney, one in connection with settlement of an insurance claim and the other for a real estate transaction. A judge advocate has the powers of a notary. 5
One Soldier wanted information on the legality of his becoming a candidate for public office while still in the military service. The aspiring young politician was assured that “greetings from his friends and neighbors” did not deprive him of his civic rights in this regard.
Finally, two men with serious marital problems sought help. The apparent solution was the institution of divorce proceedings. One of them knew a lawyer in his home town and was helped with the drafting of a letter to that lawyer. The other man’s case was complicated by a matter of choice of forum. His home was in one state and his wife had since moved elsewhere. The facts were noted, and arrangements were made to provide him with information on the grounds for divorce in each of the two states and then, if he wished, to work with bar referral agencies to obtain counsel in the better forum.
By 4 P.M., the circuit riders were home. A problem had arisen under the provisions of Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War6 and the Regulations of the Military Assistance Command, Vietnam, promulgated to implement this convention. A wounded Vietnamese had been brought into a United States military medical facility under obscure circumstances, he had no identification papers, denied being a Viet Cong, and had admitted to being a draft dodger from the Vietnamese Armed Forces. There was no indication that he had committed a hostile act. The problem at hand was to determine whether he was to be declared an innocent civilian and released, a civil defendant and turned over to the Vietnamese police or a prisoner of war. Such cases require the decision of the staff judge advocate of the command which has custody of the individual. In the light of the evidence, Colonel Kent determined that he was a civil defendant to be turned to the Vietnamese police.
By this time it was almost 5 P.M. and time for the staff judge advocate to attend the daily intelligence and operations briefing.
Then Major John Fugh sitting inside the Foreign Claims Office in Saigon in 1969. Fugh went on to serve as The Judge Advocate General from 1991 to 1993 (Photo courtesy of JAGC’s Regimental Historian & Archivist’s office).
The Defense Counsel/Legal Assistance Officer.
The defense counsel/ legal assistance officer, Captain Green, as usual, saw the greatest variety of clients. The combination of these positions in one officer saves many possible conflicts of interests. In an overseas command where civilian counsel are unavailable, legal advice on the broadest possible variety of matters must be provided if the individual [S]oldier is to receive total legal service.7
Captain Green’s first client was awaiting trial by summary court martial. He had heard that, since he had not been offered nonjudicial punishment under Article 15 of the Code, he could refuse trial by summary court martial.8 Captain Green corroborated this, explained the alternatives, including the much wider range of punishments imposable by a special court martial,9 and advised him to accept trial by summary court martial, outlining for him an appropriate line of defense.
A newly promoted major had just been appointed a summary court-martial officer. No advice had been provided about the disposition of any specific sets of charges or about the accused. Captain Green gave the major a copy of the “Guide for Summary Court-Martial Trial Procedure10”,which is comparable to the guides for justices of the peace published in several states. Then he gave him a thorough briefing on procedure, rights of the accused, the doctrine of reasonable doubt and his sentencing powers.
The next clients were two [S]oldiers recently transferred to Vietnam from Thailand. While there, both had fallen in love with Thai girls, and they wanted advice on marriage procedures. The Army’s requirements and methods of submitting applications to marry aliens residing outside of CONUS were explained.11 Both [S]oldiers decided to await completion of their overseas tours and then invite their fiancées to come to the United States as “tourists” and proceed from there.
Another pair of [S]oldiers walked in as our lovelorn swains left. They were seeking advice on application for early discharge to attend college. The provisions of the regulations12 were explained, and they were referred to their unit commanders.
Mail call presented a welcome break as well as some news for clients. A few weeks earlier two [S]oldiers involved in divorce proceedings had asked for legal advice. In both cases they had no objection to a divorce but wanted to ensure that they would not have heavy financial burdens imposed upon them for life. Correspondence with the attorneys for their spouses brought replies that fully met the desires of these two men. Documents were included for them to execute. Telephone calls were made to their units asking that they be sent to the legal assistance office.
Another letter was a response to an earlier motion for a stay of proceedings in a civil suit under the Soldiers’ and Sailors’ Civil Relief Act.13 The attorney for the plaintiff wrote that his client had agreed to drop the [S]oldier as a party to the action.
About this time Major Kulish handed Captain Green a copy of the staff judge advocate’s review of a general court-martial case which had been tried two weeks before. This written review is required by Article 61 of the Code14 in each general court-martial case for consideration by the convening authority prior to his action on the case. It provides a complete written summary of all of the evidence adduced at the trial and of the applicable law as well as a personal history of the accused based on the official records concerning him and a personal post trial interview with him. The convening authority has plenary power to set aside or reduce the findings of guilty and the sentence.15 The accused and his counsel are given the opportunity to see the review prior to the submission to the convening authority and to submit matter in rebuttal.16 Captain Green felt that certain additional facts about the accused’s military record should be brought out. After lunch, Captain Green accompanied Major Kulish to the stockade, where the latter served a copy of the review on the accused. While the Major interviewed another man, Captain Green conferred with the accused, explained his rights and reached agreement with him that a particular rebuttal should be submitted. Captain Green prepared the rebuttal, obtained the signature of the accused and delivered it for attachment to the review. The Captain then conferred with an upset young officer who was afraid that he might owe several hundred dollars on his 1967 income tax. He has used the standard deduction. After re-computing his return with proper deductions for interest, state and local taxes and charitable contributions, it appeared that he had a refund of nearly $100 coming to him.
Captain Green had been told earlier by the staff judge advocate that he was assigned to defend a suspected homosexual who was being brought before a board of officers that would consider discharging him from the military service.17 The initial interview with this respondent took the better part of an hour, as the man denied any such tendencies and wanted to fight the allegation. Captain Green made an outline of the interview, prepared requests for witnesses on the accused’s behalf and made appointments to interview them.
Advice for Counsel for a Special Court.
The next visitor was a young officer who had been appointed defense counsel for a special court martial. The Army did not then have enough judge advocates to provide them as trial and defense counsel in most special courts martial, but did provide technical assistance to the officers so appointed. It has a military justice handbook called “The Trial Counsel and The Defense Counsel”.18 Captain Green gave a copy of this book to this officer, showed him how to use it as a procedural guide and then analyzed with him the evidence and probable questions of law in three cases then pending. Military law requires that an accused and his counsel be given copies of all statements made by the witnesses and of reports of investigation that are available to the prosecution.19 This occupied most of the remainder of the afternoon.
Before Captain Green could leave, he found two more clients waiting. One had been offered nonjudicial punishment but was uncertain whether to accept it or to demand trial by court-martial. Captain Green outlined the law pertaining to the alleged offense and his rights under the code. After this discussion the client felt that he would be far better off to accept nonjudicial punishment than to demand trial. The other client had been tried by a summary court-martial and wanted to know how to file an appeal. Captain Green explained that the officer who appointed the court-martial had to review the case before the sentence could be ordered into execution20 and that after this review the case would automatically be reviewed again by our office.21 He also advised the client that anything he wished to have considered by the reviewing authorities should be attached to the record of trial,22 outlined for him an approach and provided citations of law which tended to support his position and technical assistance in the preparation of his appeal.
Judge advocates lived in this Blue Villa near Long Binh, Vietnam. This photo was taken circa 1966 (Photo courtesy of JAGC’s Regimental Historian & Archivist’s office).
The Trial Counsel/Claims Officer.
Captain (now Major) Felder’s day started earliest of all. He was our “on call” lawyer and was awakened by the military police at 2:10 A.M. They had a suspect in an aggravated assault case who, after being warned under Article 31 of the code,23 had requested counsel prior to interrogation.24 At the military police station, Captain Felder consulted privately with the suspect and advised him to make no statement and to refuse any further interrogation in the absence of counsel. The client wanted advice as to the legality of the seizure by the military police of his wristwatch. Captain Felder advised him that a search and seizure made in connection with a lawful arrest was proper25 but that he would inquire as to the seizure of the watch. After a short discussion, the military police agreed to return the watch if the client would sign a receipt for it. At 4 A.M. Captain Felder returned to bed.
Captain Felder arrived at the office at 9 A.M. He informed Captain Green of his attorney-client relationship with this suspect—then to work on a revision of the II Field Force, Vietnam, Military Justice Circular. Command circulars direct compliance with the rulings of the United States Court of Military Appeals by means of clear, simple and direct language which unit commanders and military policemen can understand and follow. On March 11, Captain Felder worked on the following:
(1) The problem of having a suspect utter words for voice identification. While this has the approval of the United States Supreme Court,26 the United States Court of Military Appeals has held that the protections afforded to military personnel by Article 31 of the code are broader than those accorded to the remainder of the population by the Fifth Amendment,27 and military suspects may not be legally ordered to utter words for this purpose.
(2) The problem of “speedy trial”, a difficult one in a theater of operations. Recent decisions of the Court of Military Appeals28 indicate that restriction to the limits of a military installation imposes upon the Government a duty to proceed with due dispatch.
(3) Additional guidance required for the omnipresent problem of nonjudicial punishment under Article 15 of the code. We want to ensure that everyone understands that the acceptance of Article 15 by an accused is not the equivalent of a plea of guilty but merely an acceptance of the forum and that commanders must still have proof of an offense cognizable by the code before they may administer punishment.
At 10 :30 A.M. two criminal investigation agents came in for guidance. Since he had no attorney-client relationship with the suspect they had under surveillance, Captain Felder proceeded to examine the file and consider a proposed search. In this case, an order from an appropriate commander takes the place of a civilian search warrant29 and must be obtained prior to a search. Captain Felder drafted a document for the signature of the company commander. He advised the agents that they must provide the commander with sufficient information for probable cause to order such a search. Otherwise his order, and hence the search, would be unlawful.30
After lunch, a helicopter pilot wanted information about a claim. The same enemy shell that had sent him to a hospital had also ruined his camera. Captain Felder explained the operations of the Military Personnel and civilian Employees Claims Act of 196431 and Army Regulation 27-29 which implements it. Captain Felder provided the forms and indicated the evidence necessary to support the claim.
A sergeant arrived for help with his income tax.
A [S]oldier interested in acquiring United States citizenship came in. He had read about a new “law” which would make it easier for those on active duty to acquire citizenship. The new “law” was H.R. 15147 which passed the House of Representatives on March 4, 1968, and which would amend the present Immigration and Nationality Act.32 After explaining the current status of the bill, Captain Felder gave him the necessary forms and told him to return when he had gathered the information required.
The mail contained three records of trial by special courts-martial in our units. These had already been approved by the respective convening authorities and had arrived for the required review.33 One of the cases involved the offense of sleeping on post while on duty as a sentinel.34 As the offense had occurred in an area subject to “hostile fire”, the maximum punishment was a dishonorable discharge and confinement at hard labor for ten years.35 Most such cases, however, are disposed of by special courts-martial, in which the maximum punishment is limited to confinement at hard labor and a forfeiture of two thirds’ pay for six months. The other two cases both involved vehicles—one charge was “joy riding” in a government vehicle36 and the other reckless driving.37 In each case Captain Felder determined that the evidence of record supported the finding of guilty, that the sentence was within legal limits and that there were no grounds for further clemency action. He recommended to Major Kulish that the cases be stamped “legally sufficient”. While the law merely requires review by “a judge advocate”, in this office all such records of trial are reviewed by at least two judge advocates, and if they disagree the matter is determined by the staff judge advocate. It was now 4 P.M. and Captain Felder was able to return to work on his circular.
Captain Norman Cooper stands outside the 173d Airborne Brigade’s Staff Judge Advocate office circa 1969 (Photo courtesy of JAGC’s Regimental Historian and Achivist’s office).
The Deputy Staff Judge Advocate.
Major Kulish, the deputy staff judge advocate, came in early to finish his draft review of a general court-martial case. He wanted to discuss the recommendation on approval of the sentence with the staff judge advocate prior to his projected departure. This case involved two counts of aggravated assault under Article 128 of the code.38 By the time Colonel Kent left, the draft was completed, approved and in the hands of the typist. As the staff judge advocate departed, an artillery battery commander walked in. His unit, an automatic weapons battery, would soon be fragmented into sections to provide protection for several fire support bases of heavy artillery in widely separated areas. The previous night there had been an assault with a deadly weapon involving two of his men. Major Kulish advised him to secure detailed written statements at once from each witness and pointed out that despite the use of a deadly weapon there had apparently been no real intent to inflict serious injury. The battery commander decided to recommend trial by a special court martial. Major Kulish received a telephone call from the legal clerk of one of the battalions asking for help in phrasing an order vacating a suspension of a sentence to confinement. The battalion commander had ordered into execution only a forfeiture of pay and had suspended execution of the confinement since the accused was a first offender. The current misbehavior was a repetition of disrespect to a noncommissioned officer.39 The clerk was guided to Appendix 15e of the Manual for Courts-Martial.
An Affidavit Needed at Home.
The next client was a [S]oldier who, while on his pre-embarkation leave, had witnessed a conversation between his father and a forest ranger regarding the appropriate time for trash burning. Now his mother had been cited for improper burning during those hours. An affidavit concerning the conversation which he had heard was executed for mailing to this [S]oldier’s parents.
While this affidavit was being typed, another client came in who needed a special power of attorney for his wife so that she could settle with his automobile insurance company.
The remainder of the morning was occupied by proofreading the final draft of the general court-martial review, and a copy was given to Captain Green so that he could read it before it was served on the accused. The telephone rang. A battalion legal clerk needed reassurance. He bad drafted some court martial charges and wanted Major Kulish’s approval. This particular clerk happened to be the most competent but least self-assured on the base. Major Kulish gave him a verbal pat on the back, a mental kick in the pants, and went off to lunch.
Upon his return to the office, Major Kulish skimmed the daily reading file to look at changes in regulations and to see from the serious incident reports what sort of military justice “business” might he in the wind. Then off to the stockade with Captain Green. While the defense counsel was interviewing his client, Major Kulish conducted a post-trial interview with another accused whose general court martial had been completed recently. Prior to this case, the man had had no serious trouble but it was obvious that he had a quick temper that he had not learned to control. Major Kulish checked with the confinement facility personnel to determine the man’s behavior in the stockade. Major Kulish concluded that rehabilitation was possible and decided to recommend that the punitive discharge imposed by the court-martial be suspended.
The Major returned to the office at 2:30 P.M, to find a unit commander waiting for assistance in the drafting of charges. One [S]oldier in this commander’s unit decided to supplement his income by engaging in private enterprise—i.e., the cigarette business. Unfortunately, regulations already promulgated made his efforts illegal. Cigarettes are rationed items in the post exchanges and may not be resold or bartered lawfully. The [S]oldier had cajoled his nonsmoking friends into buying their rations for him. He also had discovered a means of erasing the check mark on his own ration card so that he was able to reuse each ration block several times. As the man had no history of prior offenses, the unit commander was interested only in a special court martial. Therefore, it was decided to ignore the more sophisticated offenses involving falsification of a government document, which would have been tried under Article 134 of the code,40 and charges dealing with the violation of a lawful general regulation under Article 92 of the code41 were drafted.
Major Kulish started to arrange his post-trial interview notes but was interrupted by a sergeant who had signed an option to purchase a home in a new development in his native Louisiana. His wife was to complete the deal armed with a special power of attorney which had been prepared by the attorney for the financing institution. The sergeant had this instrument and wanted it notarized. Asked if he had read it, he said no because he wouldn’t understand it anyway, but he knew he had to sign it to get the house. After a careful reading of the document and inquiry of the sergeant as to the state of title and financial responsibility of the developer, Major Kulish suggested that he retain an attorney in Louisiana to represent him. The sergeant replied that he did not need a lawyer—and that he wanted to execute this document now. Since the power was a very restrictive one and only allowed the wife to sign for the amount and rate of interest to which the sergeant had already agreed, Major Kulish notarized his signature.
It was about 3:40 P.M. when a corps intelligence agent arrived with a file for examination. Major Kulish was preparing a memorandum analyzing the evidence in the file when Colonel Kent walked in. Major Kulish gave him the memorandum and the file and sat in on the discussion. After that, the trial counsel of one of the special courts-martial came in for consultation on the method of submission of an official document into evidence as an exception to the hearsay rule. Major Kulish explained the law on the subject and the manner in which the trial counsel should submit the document and prove its official nature and authenticity. Finally, back to the interview notes until time to close the office for another day.
This, then, was our day. Other days would have shown other problems, some similar and some different. There might well have been a contract to draft or review and probably a great deal more claims business. But we chose this day in advance, not knowing what it would bring, and determined to report it without embellishment. We consider ourselves to be part of what Mr. Justice Brennan has called the “public bar”42 but we shall leave to our civilian colleagues the answers to our original questions. In turn, however, we would ask two: (1) If we are not practicing law, what are we doing? (2) If they don’t need lawyers in Vietnam, what do you suggest they replace us with?
Notes
1. Reprinted with permission of the American Bar Association Journal, Irvin M. Kent et. al., A Lawyer’s Day in Vietnam, 54 Am. B. Ass’n J. 1177 (1968).
2. United States, v. Brown, 10 U.S.C.M.A. 498, 28 C.M.R. 64 (1959).
3. Art. 15, Uniform Code of Military Justice (hereinafter referred to as U.C.M.J.). 10 U.S.C. § 815.
4. 31 U.S.C. §§ 240-243; Army Regulations (hereinafter referred to as A.R. 27-29).
5. Art. 136, U.C.M.J., 10 U.S.C. § 936.
6. July 14, 1955. 6 U.S.T. 3316, T.I.A.S. No. 3364.
7. Cf. A.R. 608-50.
8. Art. 20, U.C.M.J, 10 U.S.C. § 820.
9. Art. 19, U.C.M.J, 10 U.S.C. § 819.
10. Dep’t. of the Army Pamphlet No. 27-7.
11. A.R. 608-61.
12. A.R. 635-200.
13. 50 U.S.C. App § 521.
14. 10 U.S.C. § 861.
15. Art. 64, U.C.M.J., 10 U.S.C. § 864.
16. United States v. Griffin, 8 U.S.C.M.A. 206, 24 C.M.R. 16 (1956).
17. A.R. 635-89.
18. Dep’t. of the Army Pamphlet No. 27-10.
19. Manual For Courts-Martial, 1951 ¶ 44h; see also Kent, The Jencks Case: The Viewpoint of a Military Lawyer, 45 A.B.A.J. 819 (1959).
20. Art. 64, U.C.M.J., 10 U.S.C. § 864.
21. Art. 65, U.C.M.J., 10 U.S.C. § 865(c).
22. Manual For Courts-Martial, 1951, ¶ ٤٨j (2).
23. Miranda v. Arizona, 384 U.S. 436 (1966), was declared applicable to military law in United States v Tempia, 16 U.S.C.M.A. 629m, 37 C.M.R. 249 (1967).
24. C.M.R. 249 (1967).
25. Manual for Courts-Martial, 1951, ¶ ١٥٢.
26. United States v. Wade, 388 U.S. 218 (1967).
27. United States v. Newborn, 17 U.S.C.M.A 431 (1968), of which we were informed by cable from the Office of The Judge Advocate General.
28. United States v. Smith, 17 U.S.C.M.A. 427 (1968) and United States v. Parish, 17 U.S.C.M.A. 411 (1968).
29. Manual for Courts-Martial, 1951, ¶ ١٥٢.
30. United States v. Brown, 10 U.S.C.M.A. 482, 28 C.M.R. 48 (1959).
31. 31 U.S.C. §§ 240-243 (1965 Supp.).
32. 8 U.S.C. § 1440.
33. Art. 65, U.C.M.J., 10 U.S.C. § 865(c).
34. Art 113, U.C.M.J.
35. Exec. Order No. 11.317.3 C.F.R. § 913.
36. Art. 121, U.C.M.J., 10 U.S.C. § 921a (2).
37. Art. 111, U.C.M.J., 10 U.S.C. § 911.
38. 10 U.S.C. § 928.
39. Art. 91, U.C.M.J., 10 U.S.C. § 891.
40. 10 U.S.C. § 934.
41. 10 U.S.C. § 892.
42. Brennan, The Responsibilities of the Legal Profession, 54 A.B.A.J. 121, at 123 (1968).