Word of Honor (9 page)

"Good idea.

"The school year is nearly over."

"Right. I I

"Should I list the house with the brokers?"

"Don't overreact."

She thought a moment, then inquired, "How are your employers going to take this?"

Tyson swung the car onto Stewart Avenue. "Who knows?" He headed west toward Eaton Road. "I can't get a handle on that bunch. They really are inscrutable."

"I'll let the racist remark pass, Ben, because I know you're under some strain."

Tyson didn't reply.

She asked, "Did Phil find you?"

"Yes." He turned left on Eaton Road. "Spoke to me in the men's room. Do you realize how much business is conducted in men's rooms?"

"What did he say?"

"Sue the bastards."

"He must be under the impression you're innocent."

"No, he's under the impression that the government is not clever enough or motivated enough to seek an indictment. Therefore, Picard is vulnerable to a civil suit. Poor Andrew Picard. He may find out that the truth doesn't pay as much as it costs."

She looked at him in the dim light. "Would you sue a man who told the truth?"

Tyson pulled into his long driveway and shut off the engine. He listened to the insects for a while.

"Would you?" she asked again.

Lieutenant General William Van Arken, the Army's

Judge Ad-

CHAPTER vocate General, flipped

through the personnel

file in front of him. "I

see he has two Purple

Hearts. Scow one point

for Mr. Tyson."

Fraser Duncan, from

the Secretary of the

8 Army's office, looked

at Tyson's medical file

and commented, "Both wounds were superficial. Score only half a point."

Herbert Swenson, an aide to the Secretary of Defense, observed, "He has the Vietnamese Cross of Gallantry, awarded by the Vietnamese government for actions at Hue. That could get sticky."

Thomas Berg, a presidential aide, looked down the long, polished mahogany table. He said, "We were discussing the question of possible court-martial.

Let's talk about relevant facts.

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WORD OF HONOR 0 67

General Van Arken, sitting at the opposite end of the table, replied, "Mr.

Berg, if you have ever witnessed a court-martial, you will know that is what we are doing."

Berg shrugged. He turned to Peter Truscott, a young attorney from the Justice Department. "I gather from what you've said that the Attorney General is not interested in pursuing this case."

Truscott stayed silent for longer than was considered polite, then replied carefully, "I didn't actually say that. I said it is a shaky case from a legal standpoint, Mr. Berg. Also, the Attorney General feels the matter is specifically military in nature."

Berg looked up and down the table at the four men present in the windowless room, located in the interior of the building. Green-shaded lamps illuminated the places where the men sat, leaving dark gaps at the long table.

The outer fringes of the large room were in darkness, and the only sound that penetrated the room was the susurrant rush of the air-conditioning ducts. Dark things, thought Berg, belong in dark places.

There was no stenographer present, and Berg had seen to it that there were no tape recorders in the room. No one was allowed to take notes. This was an unofficial, ad-hoc group whose agenda memos and daybooks showed they were meeting to discuss better methods of interdepartmental communication, which in fact they had discussed for about two minutes. And except for Van Arken, they were representatives of their respective government offices-special aides to their bosses. The feeling in the White House had been to keep it low-key. The subject of Benjamin Tyson, if anyone ever asked, had never come up.

Fraser Duncan spoke directly to Berg. "Could you give us some insight into the White House's thinking on this?"

Berg rubbed his lip thoughtfully, then replied, "The President knows nothing of this. His military aides asked me to prepare a background briefing in the event it becomes necessary to bring this to the President's attention. The President's only interest in this would derive from his position as Commander in Chief. " Berg thought he ought to temper the lie and added, "His political aides are obviously con-68 * NELSON DEMILLE

cerned with the political ramifications of the case. No one has forgotten Nixon's part in the Calley case." He added quickly, "But politics are not the issue. The President's legal aides want to insure that the President acts in a legally correct manner each step of the way."

Berg looked at Van Arken, who as a young major had been on the prosecution staff in the My Lai case. Berg said to him, "We are here because so little precedent exists for this type of thing in this country-and thank God for that. In fact, with the exception of yourself, General, no one here has had any experience with war crimes, and no one is quite as sure of himself as you are. " Berg saw a few smiles around the table.

Van Arken replied with forced civility, "I'm fairly certain that eventually this will land in my lap, and the Army will be obliged to proceed with a court-martial. If so, then 1, too, want to be certain that we don't have a recurrence of the Calley-Medina fiasco."

Berg nodded. "So does the White House, General. " Berg had taken the time to read Van Arken's file and to ask questions of people who knew the man.

Van Arken was fifty-five, young for his position. He was military in his bearing, language, and attitude, an oddity in the Judge Advocate General's Corps, where the opposite qualities were held in some esteem.

Berg saw that no one was going to speak, another oddity in a government meeting, so Berg said, "Gentlemen, what we've established so far is that legally an officer can be tried for a murder, or murders, committed by his troops, depending on the circumstances. We've also noted that there is no statute of limitations on murder. Beyond these two elementary facts, we have not discovered anything. We can't even be certain a capital crime has been committed. "

The General's voice carried loud and clear across the room. "Based on what we've all read in this Hue book, we have every reason to believe that some sort of capital crime has been committed."

Swenson said irritably, "Certainly you don't believe everything you read."

Van Arken replied with less assurance, "No, Sir ... but WORD OF HONOR 1 69

you can't come away from reading that without getting some sense of . . . of a criminal act." Van Arken sipped on a glass of water. "As in civilian law, where there is information or suspicion that a violation of law has occurred, then an official investigation must follow. "

Berg had realized early in the meeting that Van Arken was disposed toward a full criminal investigation, rather than an unofficial fact-finding committee as the White House had hoped. Clearly, the man was out to make a reputation for himself; or to live down his previous reputation regarding the Calley-Medina trials. However, the Tyson case, more than the Calley case, had trouble written all over it. Not only domestic political trouble, but international problems as well. Berg said to the group, "As I understand it, there is a question of jurisdiction involved here. It is the opinion of the Justice Department that no state or federal court has jurisdiction in this case. "

Truscott nodded. "That's correct. The alleged crime happened in a foreign country. The alleged perpetrator was at the time a member of the armed forces. However, he is not now a member of the armed forces. And that's where the problem lies."

Berg turned to Van Arken. "General?"

Van Arken stayed uncharacteristically silent for a few seconds, then said,

"As Mr. Truscott indicated, the alleged crime was committed while the suspects-and I include Tyson's troops, of course-were subject to the provisions of the Uniform Code of Military Justice. There's no doubt about that. My opinion is that whether or not they are so subject at present is irrelevant-"

Truscott interrupted, "It is not irrelevant, General. It is crucial. Tyson, we know, is not in the Army now. The others may or may not be. We will find out. But the Army is not going to try civilians. Not ever."

Van Arken replied calmly, "Do you-mean to tell me, Mr. Truscott, that if some of those men are still on active duty, only they will be unfortunate enough to be tried for murder? Will the civilians go free for the same crime?"

Truscott began to reply, but said instead, "The question is probably moot.

Let's find out first if any of these men are still on active duty."

70 * NELSON DEMILLE

Van Arken continued, "All right, assume none of them are. Tyson we know is a civilian. So how must we change the jurisdictional status of these men?"

Truscott didn't reply, but Berg said, "You're suggesting, of course, that we call these men back to active duty."

Van Arken nodded. "Mr. Truscott is correct. The Army cannot and will not try civilians. Therefore, we cannot even begin an investigation of Mr.

Tyson, but we can investigate Lieutenant Tyson."

There was silence in the room, then Berg said, "I've been advised that this question of a serviceman becoming a civilian before a crime has been discovered has never been fully resolved to anyone's satisfaction. It's apparently a glaring gap in our system of justice. Therefore, we must legally resolve this point before we proceed."

Van Arken added, "Every decade or so something like this comes up, and we are mWapared for this question of jurisdiction. Most of these past cases involved crimes of little importance. Here we have a crime of immense pro-portions, with implications beyond our borders."

Berg said, "Thank you, General. I think we realize that. "

"The point," continued Van Arken, unperturbed, "is that, while the Uniform Code of Military Justice does not list war crimes as an offense, it does list first-degree murder, and that is the charge that must be investigated.

Because-and this is the point, Mr. Berg-if it is not, I hold out to you the embarrassing possibility that, theoretically, the present government of Vietnam, or the governments whose nationals were alleged to have been murdered in that hospital, could file charges with the tribunal in The Hague. The charge would be crimes against humanitywar crimes."

No one commented and Van Arken continued, "Under U.S. law, we know neither Tyson nor his men would ever have to actually face such a tribunal.

However, it is crucial that the charge of murder be promptly investigated to preempt anything of this sort."

Berg was unimpressed by Van Arken's foray into international law and diplomacy, but he knew Van Arken had

WORD OF HONOR 9 71

a point. He said, however, "American citizens are not charged with murder to satisfy world opinion or domestic opinion. "

Van Arken replied, "I wish that were so. But there have been cases where just that has happened to servicemen overseas. And, to some extent, that will happen with this case if you delay. This is a case where the law has to be in advance of public opinion so as not to give the appearance later that we were bending to any outside pressures. In other words, gentlemen, before a storm of media attention hits us, we ought to publicly announce an investigation. "

Berg had the gut feeling that Van Arken, whatever his motives, was correct.

But the President and his advisers hoped this mess would go away if left alone. Berg knew intellectually that it would not, but emotionally he hoped also. He felt he had enough bad news to carry back to the White House for the moment. He looked at Herbert Swenson.

Swenson understood the unasked question and replied, "From what I've heard, I don't believe this matter should be personally attended to by the Secretary of Defense. The Department of the Army ought to deal with it directly."

Fraser Duncan smiled thinly. "I'll recommend that the Secretary of the Army closely monitor the case, but I'm passing the buck down to the Judge Advocate General's Corps . "

Peter Truscott spoke. "The resources of the Attorney General's office are, as always, available to the government in the interests of justice. But only in matters pertaining to questions of law. On questions of strategy, that's up to the Army, the JAG, and the Commander in Chief."

Berg nodded. There was, he thought, little legal precedent to fall back on.

There appeared to be a violation of the Uniform Code of Military Justice; there appeared to be some machinery in existence to deal with this violation. But because of the unique and unusual nature of this case, there were many subjective decisions to be made along the way to the courtroom.

Berg gathered his files and said, "I suggest we adjourn and do some homework and some . . . soulsearching." He stood. "We'll meet again to discuss inter-72 0 NELSON DEMILLE

departmental communications. In the meantime, keep in mind that we are not dealing solely in abstract law problems or public relations problems, but with human beings. Specifically, with a man named Benjamin Tyson who may end up in front of a court-martial board, on trial for murder, for which the maximum penalty, if convicted, is death by firing squad. Good day."

David Tyson came into the kitchen where his father was sitting,

breakfast counter.

David said, "I'm going

to bed."

Tyson looked up at

the kitchen clock and

saw it was nearly 11

9 P.m. Marcy would be

back soon from her

nocturnal grocery shopping. The night was warm, and Ty son was barefoot and shirtless, wearing only a pair of cutoff jeans.

David asked, "What are you reading?"

Tyson replied, "These are photostats of magazine pieces that I got from the library. Personal accounts of the battle of Hue."

"We're up to that now. I mean Vietnam. In school. In history.

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74 0 NELSON DEMILLE

Tyson smiled. "When I was a soph, we only had to get up to Eisenhower sending the Marines to Lebanon."

David pulled up a stool and sat opposite his father.