Word of Honor (46 page)

macho ... on that board of officers."

"So how did the defendant do?"

"He received one to ten ... for the manslaughter. But they slapped him with two years for leaving his post and dereliction of duty."

"Typical Army," commented Tyson. "He would have been in more trouble if his pistol had misfired because it was dirty."

Karen Harper stretched her legs out and settled back on the bench.

"That's a bit of an exaggeration. But your point, I assume, is that the military gives different priorities to some offenses than do civilian courts. That's something you and Mr. Corva ought to keep in mind. I'm sure you both will. Anyway, I understand he's rather good though his record is not so good. He takes mostly hopeless cases." She looked out toward the ocean. "There's a storm coming. See it?"

Tyson turned from her and gazed out over the water. He could see whitecaps forming on the dark blue expanse of open sea, and the stars on the horizon were obscured by a blurriness that he knew was rain.

She stood. "I'd better get back. I have work to do."

He stood also, and they began walking. A few drops of rain began falling, and the hot blacktop steamed. He said, "I'll lend you my umbrella again if you promise not to lose it.-

She picked up her pace. "Well. The rain became heavier. Ahead were the lights of the officer family housing. The guest house was a quarter mile away. She said, "All right," and began moving quickly toward his housing unit. The rain became heavier. They both broke into a run.

They reached the front door soaking wet. Tyson hadn't locked the door, and he threw it open. They ducked quickly inside, out of breath. Tyson wiped the rain from his eyes and cheeks. He said, "Let me get you a towel to dry off."

"If you don't mind."

"No, I have three Army towels. Do you want to stay until this passes over?"

"No. I'll just take the umbrella.

"I can drive you to the guest house."

WORD OF HONOR 0 357

"I'll walk.

"Beer?"

"No thanks. A towel."

He looked at her, rainwater running down her face, and he reached up and wiped her brow and cheeks with his fingers. Their eyes met and held. He put his hands on her shoulders. She stood perfectly still, then put her left hand on his side, then hesitantly her right hand rested on his forearm.

Tyson could hear his own heart beating and saw that a vein was fluttering in her throat. He felt his hands and her hands shaking. He drew her closer.

A footstep on the stairs broke the silence, and they stood apart. Around the comer of the landing appeared Marcy. She said, "Hello. I thought I heard voices."

Tyson said, "Marcy, may I present Major Karen Harper?"

Generat William Van Arken sal in he rear of the

lecture hall and

tor, Colonel Ambrose

Horton, deliver the fi

nal words of his talk

to the two dozen mil

itary students sitting

in the front row.

Horton's deep, Vir

2 9 ginia-accented voice,

unaided by a micro-

phone, echoed through the nearly empty amphitheater of the United States Army's Judge Advocate General School.

The school, located within the Charlottesville campus of the University of Virginia, was a three-hour car ride from the Pentagon.

Colonel Horton's eyes drifted up into the rear rows and rested on General Van Arken, who was wearing a civilian suit of dark blue. It would have been correct to introduce the Army's Judge Advocate General, the boss, to the JAG School students, and indeed they would have been honored.

358

WORD OF HONOR 9 359

But Colonel Horton's instincts told him that the General wanted to remain anonymous. Horton directed his attention back to the first row and spoke.

"It has been said by combat commanders that the battlefield is the most honest place in the world. It has also been said by legal types such as us that, regarding war crimes, there are unique complexities in discovering the truth about a combat soldier doing his duty in the field."

General Van Arken listened to the echoes of Colonel Horton's words die away in the open spaces around him. The chimes of the clock tower struck eight, but the students did not move. The sun was fading from the large vertical windows, and the interior lighting seemed to grow harsher.

Colonel Horton concluded, "The next time we meet, we will examine those two statements and attempt to reconcile them. Specifically we will discuss atrocities, how they happen, and how we, as Army lawyers, must ultimately deal with them. Thank you."

The students stood in unison as Colonel Horton moved from the lectern up the center aisle. General Van Arken met him halfway. Horton said, "Good evening, General. An unexpected pleasure."

They shook hands. "This is not official," General Van Arken said. "Let's walk."

The two men left the lecture hall and went out into the hot night, walking through the nearly deserted campus. Van Arken said, "I'd like your opinion on the Tyson case."

Colonel Horton nodded. "Unofficially?"

"Of course. " Van Arken gave Horton a sidelong glance. The man was well into his seventies and had the distinction of being the only man still in the Army who had been involved in the Nuremberg trials. He was considered by many to be the dean of Army jurisprudence and taught the philosophy of law and ethics to civilian as well as military students. Notwithstanding Horton's stature, he had been passed over for promotion to brigadier general twice, and in almost any other branch of the Army he'd have been asked or forced to resign. Van Arken said, "Would you like to sit awhile?"

He indicated a wooden bench.

Horton nodded and lowered himself heavily onto the bench. He commented,

"I've had a busy schedule today."

360 0 NELSON DEMILLE

Van Arken sat on a facing bench and replied diplomatically, "This heat has drained me too." He looked into the old man's eyes. "Can I speak to you in confidence?"

Colonel Horton unbuttoned his green tunic and loosened his tie. He replied in a slow drawl, "As long as we don't stray into prohibited areas, General."

Van Arken regarded Colonel Horton for a moment. Horton caused him some measure of unease. The man was a maverick and a nuisance. He lectured widely on the Nuremberg trials, the Calley-Medina case, and on other con-troversial areas of military law. The Army did not always appreciate his views. Neither did Van Arken, which was one reason Horton would remain a colonel. But Van Arken needed straight answers, and Horton gave them.

Van Arken said, "There is some talk that Major Karen Harper has inadvertently damaged the Army's case against Tyson."

"Well," said Colonel Horton, "what happened between Tyson and Harper as far as I can determine was magic. There is the doctrine in law which says we cannot enjoy the fruits of the poison tree. But we know they taste as good. Better. So, consider the Article 31 investigation a success, General. And end it. Soon."

Van Arken said, "I have."

"Good. Do you have any guesses as to what Harper will recommend?"

Van Arken shook his head. "It is really up to Tyson to impeach Dr.

Brandt's testimony. If he does and if there is some substance to whatever he says about Brandt, then it doesn't much matter what Brandt has said about Tyson. I would not want to go into a courtroom with no evidence beyond two shaky witnesses. And neither would an Army prosecutor. "

"But as it stands now," asked Colonel Horton, "Dr. Brandt is unimpeachable?"

"To the best of my knowledge. I have no contact with Major Harper, of course." Van Arken looked at Horton. "Do you want to walk?"

"Yes." He stood and buttoned his tunic. They walked on a path that cut diagonally across the Green Lawn. The multipaned windows of the buildings cast light patterns on the dark grass. Van Arken said, "During the Calley busi-

WORD OF HONOR 361

ness, there was little sympathy for the accused within the JAG. We have a different situation here. Certain people at the top--in the White House and the Justice Departmentare beginning to waver. I believe we owe it to the Army and to the nation to press on. And I was wondering if you felt the same way."

Colonel Horton looked around at the lighted buildings. He loved this old university founded nearly two centuries before by Thomas Jefferson. It was a magnificent showplace of neoclassical architecture: colonnades, cupolas, rotundas, and balustrades. But more than that, it was a place of mellow moods, an institution that still placed some value on chivalry, honor, and tradition. Horton mused, "What would Jefferson advise us, General?"

Van Arken took the question to be rhetorical and did not reply. Colonel Horton answered his own question. "Jefferson did not see the law as a narrow vocation but as a means of understanding the history, culture, morals, and institutions of a society. I think if we ran into him on this path now, he'd ask us how it came to pass that the American government is not certain it has the right to judge its citizens. "

General Van Arken responded, "The question I put to you is, do we owe it to the nation to press on despite our . . . well, our shared culpability in the events of 15 February 1968?"

Colonel Horton smiled wryly, then said, "Are you looking for me to put something in writing, General? A memo to the White House or the Justice Department?"

"Well, yes. A sort of white paper from you as a respected jurist. Legally, we are on the right track. But people have raised these moral and ethical questions on both sides of this issue. We'd like to address those, to put this legal framework on a firm philosophical foundation."

Colonel Horton rubbed the side of his nose with his bony index finger and spoke contemplatively. "You know, General, when I was a young lieutenant working the prosecution side of the bench at Nuremberg, virtually the entire world was on our side. The press corps covered every minute of the trial, but there was no real scrutiny as we know it today -Consequently, we got away with a great deal. Errors in

362 " NELSON DEMILLE

procedure, that sort of thing. But more importantly, we got away with making up the law as we went along. We hanged who we wanted to hang and were amazed at ourselves when we actually handed out prison terms instead of the death penalty. And there was no appeals process. Death meant death.

"

Horton reflected a moment before continuing. "There were only a handful of voices raised against the Allied tribunals. I was not among those who had the wisdom or foresight to see that what we were meting out was not justice but revenge. And even if I had understood that, I would not have had the moral courage to raise my voice. " He looked at Van Arken. "I mean, my God, Hollywood blessed us with Spencer Tracy and Judgment at Nuremberg. There was not even the slightest doubt that we were not wholly on the side of the angels. " They continued on in silence awhile, then Colonel Horton said, "General, when you were a young captain working on the prosecution side in the My Lai cases, you were operating in a different world, a different moral climate. The media did their own investigations and in fact forced the Army investigation. The President did not see it as something to be proud of, and national opinion polls showed a majority in favor of letting the accused go free."

"Yes, I recall that clearly."

"Yes, so here we are today, both of us veterans of two of the most important military trials of this century, and I hope we'll keep in mind the lessons we both learned. We have no excuses for errors in judgment."

Van Arken replied with a touch of impatience, "What I learned from the My Lai trials, Colonel, was that the nation and the world will not tolerate barbarism in the armed forces of the United States no matter how that barbarism tries to disguise itself as battle." Van Arken drew a breath, then continued, "And Nuremberg, for all the faults, showed the world that civilization will not tolerate barbarism even when it becomes the national policy of a sovereign state. It is my considered opinion that if we are ever again to judge our enemies, legally or morally, we must first judge ourselves no matter how painful it may be to do so. "

Van Arken continued, "Any contemplated trial of Benjamin Tyson must WORD OF HONOR o 363

serve as a warning to every combat officer in future wars that he will be held accountable for his actions until the day he dies."

Colonel Horton wondered how much of what Van Arken said was in the interests of justice, humanity, the Army, or the nation and how much was in the interests of General Van Arken and his career. But he did not want to be uncharitable toward the man. He might well be sincere. Horton spoke in a conciliatory tone. "Certainly, General, what you say is correct. But on a less theoretical level, I want to point out to you those unique complexities in discovering the truth about a combat soldier who was doing his duty in the field. Tyson was sent to Vietnam to kill. Any courtmartial that is convened will not have to determine whether or not he killed but if he killed the right people in the right way. "

Van Arken replied tersely, "My concern is that the entire question of the morality of the war will be raised as a defense. At Nuremberg you operated from a position of moral certainty. "

"So did the Nazis. If you raise philosophical questions and try to drag me into it as an apologist for the government, you will give the case more stature. And that will play into the hands of the defense. That is my advice to you, though I give it grudgingly because I quite frankly don't believe that justice is being done."

"Why not?"

"Because the climate that existed in 1968 allowed not only the crime but the cover-up to flourish. Something had gone fundamentally wrong with the ethics and standards of the officer corps, the Army, and the nation. We've corrected much of that. But we can't go back and start court-martialing lieutenants until we call the generals to account. And the civilians in those past administrations. That's another thing I learned at Nuremberg."

Van Arken nodded. "That is what I'm afraid the defense is going to say. I'm afraid they're going to offer what has come to be called the Nuremberg defense."