ALLEY, Judge:

In much publicized proceedings, appellant was convicted by general court- martial of three specifications of premeditated murder and one of assault with intent to commit murder in violation of Articles 118 and 134, Uniform Code of Military Justice, 10 USC SS 918 and 934, respectively. He was sentenced to dismissal, forfeiture of all pay and allowances, and confinement at hard labor for life. The convening authority approved dismissal and the forfeitures, but reduced the period of confinement to twenty years. The offenses were committed by First Lieutenant William L. Calley when he was performing as a platoon leader during an airmobile operation in the subhamlet of My Lai (4) in Song My village, Quang Ngai Province, Republic of South Vietnam, on 16 March 1968. Although all charges could have been laid as war crimes, they were prosecuted under the UCMJ. See paragraph 507b, Field Manual 27-10, The Law of Land Warfare (1956).

V--SUFFICIENCY OF THE EVIDENCE

A. The Evidence. On 16 March 1968 Lieutenant Calley was the 1st platoon leader in C Company, 1st Battalion, 20th Infantry, 11th Light Infantry Brigade, as he had been since he arrived in the Republic of Vietnam in December 1967. The 11th Brigade was assigned to the Americal Division, itself only formally activated in October 1967.

The Americal Division was assigned a tactical area of operation along the South China Sea Coast from Quang Ngai Province north into Quang Nam Province. That area, approximately 150 kilometers from north to south, was divided among the three constituent brigades, the 11th Brigade receiving the southern-most portion. With the exception of the area in the vicinity of Quang Ngai City, which had been assigned to 2nd Republic of Vietnam Army (ARVN) Division, the 11th Brigade area of operation ran from Duc Pho District north to Binh Son District, and inland for approximately 30 kilometers.

In January 1968, appellant's company; A Company, 3d Battalion, 1st Infantry; and B Company, 4th Battalion, 3d Infantry, were chosen by the brigade commander to compose Task Force Barker. A supporting field artillery battery was organized from the assets of three existing batteries of the brigade's organic field artillery battalion. The Task Force area of operation, designated Muscatine, was located north of the Song Diem-Diem and east of Highway 1 northward for approximately 12 kilometers to Binh Son. Its operations were conducted from two fire support bases, Uptight and Dottie (Task Force Barker Headquarters).

During operations in the southern sector of its area of operation, the units of Task Force Barker drew fire from enemy forces which would withdraw south of the Song Diem-Diem into the area of operations of the 2d ARVN Division. After the Tet offensive in early February 1968 Task Force Barker requested and received authority temporarily to extend its area of operation south of the river into Son My village. Intelligence reports had indicated that the 48th Viet Cong Battalion maintained its base camp in the My Lai (1), or Pinkville, area of Song My. The village reportedly had been controlled by the Viet Cong for twenty years. Prior efforts by friendly forces to enter the area had been sternly resisted. When Task Force Barker made sweeps into Son My later in February, it met only limited success. At the cost of moderate casualties it destroyed some enemy supplies and fortifications, but was unable decisively to engage the main enemy force.

C Company, appellant's unit, had not experienced much combat prior to 16 March 1968. In its three months of overseas duty, two of which were with Task Force Barker, its operations had consisted of uneventful patrolling, attempted ambushes, providing defense for the fire bases, and providing blocking forces for Task Force missions. The casualties it had sustained were mainly from mines and booby traps. While moving into a blocking position on 25 February 1968 the company became ensnared in a mine field, suffering two killed and thirteen wounded. Appellant was not on this operation, for he had just returned from a three day in-country rest and recuperation leave. On 14 March 1968, a popular sergeant in the second platoon was killed and three others were wounded by a booby trap.

The next day, Captain Medina, commander of C Company, was notified that his company would engage in an upcoming offensive action. He was briefed at Task Force headquarters, then called his officers and men together on the evening of 15 March 1968 for a unit briefing. The content of the briefing ... essentially was that the next morning the unit would engage the 48th VC Battalion, from whom it could expect heavy resistance and by whom it would be outnumbered by more than two to one. C Company was to be inserted by airlift to the west of My Lai (4), sweep through it, and continue toward My Lai (1) or Pinkville ...

The concept of the operation for C Company was for the 1st and 2nd platoons to sweep rapidly through My Lai (4) and the 3rd platoon to follow. The 3rd platoon would thoroughly search the hamlet and destroy all that could be useful to the enemy. A demolition team of engineers was attached to assist in the destruction of enemy bunkers and facilities.

This was to be the unit's first opportunity to engage decisively the elusive enemy they had been pursuing since their arrival in South Vietnam. The men, as is normal in an untried unit, faced the operation with both anticipation and fear, mindful of the recent casualties taken in less perilous missions.

C Company was transported by helicopter from LZ Dottie about six miles southeast to My Lai (4) in two lifts .... The insertion was preceded by five minutes of preparatory fires of 105 howitzer high explosive rounds and by gunship fire. The insertion, although within 100 meters of the western edge of My Lai (4), was not opposed by hostile fire. In formation with the first and second platoons on line from north to south, the third platoon in reserve and the mortar platoon remaining with the rear to provide support if needed, C Company laid heavy suppressive fires into the subhamlet as the first and second platoons began the assault.

Despite expectations of heavy resistance based upon specific intelligence briefings, C Company moved through My Lai (4) without receiving any fire. ... In My Lai (4), the unit encountered only unarmed, unresisting, frightened old men, women, and children, and not the expected elements of the 48th Viet Cong Battalion. The villagers were found in their homes eating breakfast and beginning their morning chores.

The members of C Company reacted to the unexpected absence of opposition in diverse ways. Some continued the mission as if the enemy was in fact being engaged. Most recognized the difference between actual and expected circumstances, so while continuing with the destruction of foodstuffs, livestock, and buildings, reverted to the unit standing operating procedures on collecting and evacuating Vietnamese. Many soldiers took no action at all, but stood passively by while others destroyed My Lai (4). A few, after witnessing inexplicable acts of violence against defenseless villagers, affirmatively refused to harm them.

No single witness at appellant's trial observed all that transpired at My Lai (4). ... One reason for vagueness and confusion in testimony offered by both sides is that the operation itself was confused, having been planned on the basis of faulty intelligence and conducted with inexperienced troops without adequate command control.

With this caveat as to the evidence, we come to the events which led to charges against appellant.

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The first platoon arrived on the first lift about 0730 hours. Its initial task was to provide perimeter defense for the insertion of the remainder of the company. After the company was on the ground and organized for assault, the

first platoon moved toward My Lai (4) in formation ...This formation quickly became disorganized in the subhamlet. Thick vegetation made it difficult for the troops to see who was near, and for the squad leaders and Lieutenant Calley to maintain visual contact with their men and with each other. However, the principal reason why the formation broke down and leaders lost control was the discovery of unresisting, unarmed old men, women and children instead of the expected enemy. The platoon had not been specifically instructed what to do in this event. No civilian collection point had been designated; and the first platoon was supposed to move through the village quickly, not to return to the rear with detainees.

Some villagers were shot by some members of the first platoon when it first entered the subhamlet. Some members collected groups of Vietnamese, without knowing what to do with them, and others stopped to kill livestock. The platoon assault formation became a meandering troop. Lieutenant Calley started out behind his platoon on the western edge of the subhamlet, but emerged at a ditch on the eastern edge before several members of his platoon ...

The Vietnamese who were taken in the first platoon's sweep were herded in two general directions, either toward the southern edge of the hamlet near an intersection of trails or easterly in front of the advancing troops.

In the second squad, Sergeant Bacon detailed men to escort a group of men, women and children villagers down a trail ... to where he thought the platoon leader would be. Private First Class Doines, a rifleman in Bacon's squad, took ten to fifteen people along a trail running north-south in the middle of the village and left them with Lieutenant Calley. .... A key witness, Private First Class Conti, stated he encountered Lieutenant Calley on a trail midway through the village. At Lieutenant Calley's direction he rounded up five or six people and put them with a nearby group of thirty to forty, consisting mostly of women and children. At appellant's order he and Private First Class Meadlo ... moved these people down the trail and into rice paddies on the southern side of the subhamlet ...

The first squad's contact with the people of My Lai (4) was more significant. Private First Class Meadlo testified that, upon order from Sergeant Mitchell, he collected thirty to forty people near what he remembered as a clearing in the center of the village. Private First Class Dursi recalled that he moved through the village gathering people in a group. He related coming upon PFC Meadlo, who was guarding a group of Vietnamese near some rice paddies next to a trail on the southern side of the village. PFC Dursi later moved his group of fifteen to a ditch on the eastern side. Private First Class Haywood picked up five or six villagers and was told by someone to take the people to Dursi, whom he saw guarding twenty to thirty others on a trail in the south side of the village. A fire team leader in the first squad, Specialist Four Grzesik, stated that he found seven or eight unresisting Vietnamese in a hootch immediately upon entering the village. He left these people with another group of twenty- five farther east in the village, in a small clearing. Specialist Four Boyce rounded up about fifteen people, mostly women and children, and passed them on to someone else. The people assembled in the southern portion of the subhamlet were not the only ones met by the first squad. Specialist Four Hall recalled that thirty to forty people were gathered in front of him, herded easterly through the village, and left at a ditch with Lieutenant Calley, Sergeant Mitchell, and others.

After the first platoon's movement through My Lai (4), which took from ninety minutes to two hours to cover only a third of a mile, the majority of the platoon formed a perimeter defense about 50 to 100 meters east of the ditch on the east side of the subhamlet. The rest of C Company more thoroughly searched and destroyed My Lai (4). ....

The fate of villagers gathered by appellant's platoon in the southern portion of My Lai (4) and at the ditch on the subhamlet's eastern boundary was alleged in the following charges: [FN20]

"CHARGE: Violation of the Uniform Code of Military Justice, Article 118

"Specification 1: In that First Lieutenant William L. Calley, Jr., US Army, 40th Company, The Student Brigade, US Army Infantry School, Fort Benning, Georgia (then a member of Company C, 1st Battalion, 20th Infantry) did, at My Lai 4, Quang Ngai Province, Republic of South Vietnam, on or about 16 March 1968, with premeditation, murder an unknown number, not less than 30, Oriental human beings, males and females of various ages, whose names are unknown, occupants of the village of My Lai 4, by means of shooting them with a rifle.

"Specification 2: In that First Lieutenant William L. Calley, Jr., US Army, 40th Company, The Student Brigade, US Army Infantry School, Fort Benning, Georgia (then a member of Company C, 1st Battalion, 20th Infantry) did, at My Lai 4, Quang Ngai Province, Republic of South Vietnam, on or about 16 March 1968, with premeditation, murder an unknown number of Oriental human beings, not less than seventy, males and females of various ages, whose names are unknown, occupants of the village of My Lai 4, by means of shooting them with a rifle.

"ADDITIONAL CHARGE: Violation of the Uniform Code of Military Justice, Article 118

"Specification 1: In that First Lieutenant William L. Calley, Jr., US Army, Headquarters Company, The Student Brigade, US Army Infantry School, Fort Benning, Georgia (then a member of Company C, 1st Battalion, 20th Infantry) did, at My Lai 4, Quang Ngai Province, Republic of South Vietnam on or about 16 March 1968, with premeditation, murder one Oriental male human being, an occupant of the village of My Lai 4, whose name and age is unknown, by shooting him with a rifle.

"Specification 2: In that First Lieutenant William L. Calley, Jr., US Army, Headquarters Company, The Student Brigade, US Army Infantry School, Fort Benning, Georgia (then a member of Company C, 1st Battalion, 20th Infantry) did, at My Lai 4, Quang Ngai Province, Republic of South Vietnam, on or about 16 March 1968, with premeditation, murder one Oriental human being, an occupant of the village of My Lai 4, approximately two years old, whose name and sex is unknown, by shooting him with a rifle."

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As previously described, some of the villagers rooted out of their homes were placed in a group guarded by PFC Paul Meadlo and PFC Dennis Conti. PFC Dursi, who was about fifteen feet from PFC Meadlo watching his own group of Vietnamese, saw Lieutenant Calley come onto the trail and heard him ask Meadlo "if he could take care of that group." A couple of minutes later the appellant returned and, as Dursi remembered, yelled to Meadlo, "Why haven't you wasted them yet? PFC Dursi turned and started to move his group down the trail when he heard M-16 fire from his rear.

PFC Conti recounted that Lieutenant Calley told him and Meadlo "To take care of the people," left, and returned:

"Then he came out and said, 'I thought I told you to take care of them.' Meadlo said, 'We are. We are watching them' and he said 'No, I mean kill them."'

Conti testified that he saw Lieutenant Calley and Meadlo fire from a distance of ten feet with M-16 rifles on automatic fire into this group of unarmed, unresisting villagers.

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Appellant, testifying in his own behalf, stated that after he got to the eastern edge of the village he received radio messages from the second platoon leader, who asked him to check out some bunkers in the northeast corner of My Lai (4), and from Captain Medina, who asked what he was doing. He told Captain Medina that he had some bunkers and a small portion of the hamlet to the southeast to check out and that he had a lot of enemy personnel with him. As appellant moved over to Sergeant Mitchell's position to the southeast, he came out of the village and encountered Meadlo with a large group of Vietnamese. Lieutenant Calley recalled he said something to the effect, "Did he know what he was supposed to be doing with those people" and, "To get moving, get on the other side of the ditch." About this time he claimed to have stopped Conti from molesting a female. Instead of continuing to the first squad leader, he returned inside the village to insure that Sergeant Bacon was searching the bunkers and placing his men on perimeter defense. Then, he claims to have received another call from Captain Medina telling him to "waste the Vietnamese and get my people out in line, out in the position they were supposed to be." He yelled to Sergeant Bacon to get moving, and as he passed by Meadlo a second time he told them that if he couldn't move those people to "get rid of them."

There is no doubt that a group of submissive, defenseless Vietnamese, women, children, and old men, being guarded at the trail south of My Lai (4) by PFC Meadlo, were shot down in summary execution either by Meadlo and the appellant or by Meadlo at the order of the appellant. ...

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Lieutenant Calley testified that after he passed PFC Meadlo for the second time at the trail, he moved toward Sergeant Mitchell's location in the southeastern part of My Lai (4). He found him near a ditch that ran through that sector. He walked up the ditch until he broke into a clearing. There he discovered some of his men firing upon Vietnamese in another ditch. Lieutenant

Calley admitted that he also fired with them and told Meadlo to get his people over the ditch or, if he couldn't move them, to "waste them." He then went north to check out the positions of his men.

Charles Sledge confirmed some of those movements of his platoon leader. However, Sledge remembers important events differently. He heard someone shout that Sergeant Mitchell had some people at a ditch; moved there; saw twenty to thirty Vietnamese women, children, and a few old men; saw Lieutenant Calley and Sergeant Mitchell shove these Vietnamese down into the ditch and fire into them from four or five feet. The victims screamed and fell. A helicopter landed nearby. Lieutenant Calley went to it to talk with the aviator and returned to say to Sledge, "He don't like the way I'm running the show, but I'm the boss here."

* * * * *

After the killings at the trail, Conti went back into the village. Later he exited the east side and heard firing to his front. When he got to its source, Conti found Lieutenant Calley and Sergeant Mitchell firing from six or seven feet into a ditch filled with people who were screaming and trying to crawl up. He described the scene in court:

I seen the recoil of the rifles and the muzzle flashes and I looked down, I see a woman try to get up. As she got up I saw Lieutenant Calley fire and hit the side of her head and blow the side of her head off. I left."

Specialist Four Hall collected thirty or forty people, pushed them forward through My Lai (4) to the ditch, left them there, and proceeded to a position in the paddies beyond. .... Later, when he crossed the ditch on a wooden foot bridge, he saw thirty or forty people in it:

"They were dead. There was blood coming from them. They were just scattered all over the ground in the ditch, some in piles and some scattered out 20, 25 meters perhaps up the ditch. . . . They were very old people, very young children, and mothers. . . . There was blood all over them."

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James Dursi, it will be recalled, moved his group away from the trail when

appellant yelled to Meadlo there. He moved his people until he came upon the ditch. He stopped. Lieutenant Calley, and then Meadlo, joined him. Dursi heard Lieutenant Calley tell Meadlo, "We have another job to do" and tell Meadlo and him to put the people into the ditch. He and Meadlo complied. The Vietnamese started to cry and yell. Lieutenant Calley said something like, "Start firing," and fired into the group himself. So did Meadlo, but Dursi refused. Asked why, he testified, "I couldn't go through with it. These little defenseless men, women and kids." After the first of the firing ceased, Lieutenant Calley told Dursi to move across the ditch before he (Dursi) got sick. He did move away from the scenes of blood flowing from chest, arm, and head wounds upon the victims. ...

Meadlo gave the most graphic and damning evidence. He had wandered back into the village alone after the trail incident. Eventually, he met his fire team leader, Specialist Four Grzesik. They took seven or eight Vietnamese to what he labeled a "ravine," where Lieutenant Calley, Sledge, and Dursi and a few other Americans were located with what he estimated as seventy-five to a hundred Vietnamese. Meadlo remembered also that Lieutenant Calley told him, "We got another job to do, Meadlo," and that the appellant started shoving people into the ravine and shooting them. Meadlo, in contrast to Dursi, followed the directions of his leader and himself fired into the people at the bottom of the "ravine." Meadlo then drifted away from the area but he doesn't remember where Specialist Four Grzesik found PFC Meadlo, crying and distraught, sitting on a small dike on the eastern edge of the village. He and Meadlo moved through the village, and came to the ditch, in which Grzesik thought were thirty-five to fifty dead bodies. Lieutenant Calley walked past and ordered Grzesik to take his fire team back into the village and help the following patoon in their search. He also remembered that Calley asked him to "finish them off," but he refused.

Specialist Four Turner saw Lieutenant Calley for the first time that day as Turner walked out of the village near the ditch. Meadlo and a few other soldiers were also present. Turner passed within fifteen feet of the area, looked into the ditch and saw a pile of approximately twenty bodies covered with blood. He also saw Lieutenant Calley and Meadlo firing from a distance of five feet into another group of people who were kneeling and squatting in the ditch. Turner recalled he then went north of the ditch about seventy yards, where he joined with Conti at a perimeter position. He remained there for over an hour, watching the ditch. Several more groups of Vietnamese were brought to it, never to get beyond or out of it. In all he thought he observed about ninety or a hundred people brought to the ditch and slaughtered there by Lieutenant Calley and his subordinates.

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In an argument of extraordinary scope, appellant asks us to hold that the deaths of the My Lai villagers were not legally requitable in that the villagers had no right to continued life cognizable in our law. The two premises for this view are first, that the history of operations around Pinkville discloses villager sympathy and support for the Viet Cong, so extensive and enduring as to constitute all the villagers as belligerents themselves; and second, that appellant's superiors had determined the belligerent status of the villagers before the operation of 16 March--i.e., as belligerents, the villagers were not entitled to the protections of peaceful civilian status under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 [1956], 6 UST 3516, TIAS No. 3365; 75 UNTS 287, or of prisoner of war status because they did not organize under a responsible commander, bear a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their own operations in accordance with the laws of war, the four minima which must be satisfied by irregular belligerents in order to be regarded as prisoners of war under Article 4, Geneva Convention Relative to the treatment of Prisoners of War, 12 Aug 1949 [1956], 6 UST 3316, TIAS No. 3364; 75 UNTS 135.

This argument is tainted by several fallacies. One is that participation in irregular warfare is done by individuals, although they may organize themselves for the purpose. Slaughtering many for the presumed delicts of a few is not a lawful response to the delicts. We do not know whether the findings specifically included the deaths of infants in arms or children of toddler age, but the fallacy is clear when it is recalled that villagers this young were indiscriminately included in the general carnage. A second fallacy is that the argument is in essence a plea to permit summary execution as a reprisal for irregular villager action favoring the Viet Cong. Reprisal by summary execution of the helpless is forbidden in the laws of land warfare. See generally paragraph 497, Field Manual 27-10, The Law of Land Warfare (July 1956). It is not the law that the villagers were either innocent civilians or eligible for prisoner of war status or liable to summary execution. Whether an armed conflict be a local uprising or a global war, summary executions as in My Lai (4) are not justifiable. Articles 3, 32, 33, GC, supra.

* * * * *

Granting his own sanity, appellant contends that he was nevertheless not guilty of murder because he did not entertain the requisite mens rea. His specific claims are:

1. He was prompted to kill by provocation such as negated malice and would reduce any offense to manslaughter.

2. Events preceding and during the My Lai operation affected his psychic make- up in a way which deprived him of the capacity to premeditate or to entertain a state of mind of malice.

3. Because he did not bear any individualized ill will toward the villagers, but simply regarded them as enemy in a strict military sense, and because in the context of the operation he was not conscious of any criminal quality to his acts but rather thought that he was properly performing his duty, he is not guilty of unlawful homicide; or at very most is guilty of manslaughter**1175 because he was void of malice.

4. His acts were justified because of the orders given to him; or, if the orders and his response do not constitute a complete defense, he is at most guilty of manslaughter.

These claims are inextricably intertwined. To some extent it is necessary that they be taken up individually; however, their aggregate effect may be significant even though the effect of one would not be.

* * * * *

The instant record discloses no adequate provocation. To be legally adequate, the provocation must be of a quality which would "excite uncontrollable passion in the mind of a reasonable man." .... The insertion of the airmobile ground force at My Lai (4) was not resisted. The overwhelming weight of evidence is that the force drew no fire entering or in the village; the company tripped no mines or booby traps in My Lai (4); the persons at the trail and ditch passively submitted to their movement to those locations; and at no time was appellant confronted with a threat or hostile reaction. Those passages in appellant's brief and utterances in oral argument referring to the terror and horror of a combat assault at My Lai (4) and the circumstances there engendering fear and rage to an irresistable degree are false. Our recitation of the facts, we hope, will put an end to this sort of mythopoesis. No residents of My Lai did anything during the 16 March operation to provoke appellant's killing them and ordering their killing. If any cause could be found in their conduct, it would only be a history of sympathy or support for the enemy as related in available intelligence information. A status of being a sympathizer, collaborator, or Viet Cong proper is not such provocation as would mitigate a summary execution down the scale of unlawful homicide to manslaughter.

* * * * *

That appellant may have regarded his victims impersonally as military enemy to "waste" rather than as objects of individually founded ill will is not inconsistent with the presence of malice. Bennett v State, ...The following approved instruction illustrates the point:

"Malice, as referred to in the law, gentlemen, does not necessarily mean that there shall be entertained by the slayer any hatred, or ill will, or ill feeling, or anything of that character, towards the person killed. It means in law the intention on the part of the slayer to take human life under such circumstances that the law will neither justify nor in any degree excuse or mitigate that intention, if the killing should take place as intended. A man may kill another against whom he entertained no ill will whatever; he may be a stranger to him, and yet be guilty of murder. No particular length of time is required for malice to be generated in the mind of the slayer; it may be formed in a moment, and instantly a mortal blow may be given or a fatal short fired; yet if malice is in the mind of the slayer at the time of the doing of the act or killing, and moves him to do it, it is sufficient to constitute the homicide murder." ...

Similarly, even accepting appellant's protestations that he genuinely thought the villagers had no rights to live because they were enemy, and thus was devoid of malice because he was not conscious of the criminal quality of his acts, we find no legal mitigation. To the extent this state of mind reflects a mistake of fact, the governing principle is: to be exculpatory, the mistaken belief must be of such a nature that the conduct would have been lawful had the facts actually been as they were believed to be. ... An enemy in custody may not be executed summarily.

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Of the several bases for his argument that he committed no murder at My Lai because he was void of mens rea, appellant emphasized most of all that he acted in obedience to orders.

Whether appellant was ever ordered to kill unresisting, unarmed villagers was a contested question of fact. The findings of a court-martial being in the nature of a general verdict, we do not know whether the court found that no such orders were given or, alternatively, concluded that the orders were given but were not exculpatory under the standards given to them in instructions.

Responding to a question during direct examination asking why he gave Meadlo the order, "If he couldn't get rid of them to 'waste them"', Lieutenant Calley replied, "Because that was my order. That was the order of the day, sir." The appellant stated he received that order from Captain Medina, "The night before in the company briefings, the platoon leaders' briefing, the following morning before we lifted off, and twice there in the village."

Lieutenant Calley related what he remembered of Captain Medina's remarks to the company at the evening briefing prior to the My Lai (4) operation:

"He [Medina] started off and he listed the men that we had lost, . . . We were down about 50 percent in strength, and that the only way we would survive in South Vietnam would be to--we'd have to unite, start getting together, start fighting together, and become extremely aggressive and we couldn't afford to take anymore casualties, and that it was the people in the area that we had been operating in that had been taking the casualties on us, and that we would have to start treating them as enemy and you would have to start looking at them as enemy, . . . We were going to start at My Lai (4). And we would have to neutralize My Lai (4) completely and not to let anyone get behind us, and then we would move into My Lai (5) and neutralize it and make sure there was no one left alive in My Lai (5) and so on until we got into the Pinkville area, and we would completely neutralize My Lai (5)--I mean My Lai (1) which is Pinkville. He said it was completely essential that at no time that we lose our momentum of attack because the other two companies that had assaulted the time in there before had let the enemy get behind him or he had passed through enemy, allowing him to get behind him and set up behind him, which would disorganize him when he made his final assault on Pinkville. It would disorganize him, they would lose their momentum of attack, start taking casualties, be more worried about their casualties than their mission, and that was their downfall. So it was our job to go through destroying everyone and everything in there, not letting anyone or anything get behind us and move on into Pinkville, sir."

Appellant further recalled Captain Medina's saying that "the area had been completely covered by PSYWAR operations; that all civilians had left the area and that there was no civilians in the area and anyone there would be considered enemy," and that the unit had "political clearance to destroy and burn everything in the area."

* * * * *

Captain Medina conceded mentioning to Lieutenant Calley before lift-off "to utilize prisoners to lead the elements through the mine fields." Any congruence between their testimony in regard to communications between them ends here. Although Captain Medina acknowledged that he called the first platoon leader to inform him of the implementation of a contingency plan and so to spread his men out, he denied that Lieutenant Calley ever told him that he had bunkers to check out or that he was having difficulty in handling civilians or that the first platoon had encountered a large number of civilians. Captain Medina further disclaimed that he ever gave an order to the appellant "to move civilians out of the way or get rid of them." He stated he was never informed that the first platoon had gathered women and children and did not know the circumstances under which the inhabitants of My Lai (4) were killed. He came to the pile of bodies at the trial after the killings.

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The trial judge's instructions under which he submitted the issues raised by evidence of obedience to orders were entirely correct. After fairly summarizing the evidence bearing on the question, he correctly informed the members as a matter of law that any order received by appellant directing him to kill unresisting Vietnamese within his control or within the control of his troops would have been illegal; that summary execution of detainees is forbidden by law. A determination of this sort, being a question of law only, is within the trial judge's province. Article 51(b), UCMJ, 10 USC S 851(b); paragraph 57b, Manual, supra.

The instructions continued:

"The question does not rest there, however. A determination that an order is illegal does not, of itself, assign criminal responsibility to the person following the order for acts done in compliance with it. Soldiers are taught to follow orders, and special attention is given to obedience of orders on the battlefield. Military effectiveness depends upon obedience to orders. On the

other hand, the obedience of a soldier is not the obedience of an automaton. A soldier is a reasoning agent, obliged to respond, not as a machine, but as a person. The law takes these factors into account in assessing criminal responsibility for acts done in compliance with illegal orders.

"The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful."

* * * * *

Judge Kennedy's instructions were sound and the members' findings correct. An order of the type appellant says he received is illegal. Its illegality is apparent upon even cursory evaluation by a man of ordinary sense and understanding. A finding that it is not exonerating should not be disturbed. ....

[Calley] argues that they are all wrongly decided insofar as they import the objective standard of an order's illegality as would have been known by a man of ordinary sense and understanding. The argument is essentially that obedience to orders is a defense which strikes at mens rea; therefore in logic an obedient subordinate should be acquitted so long as he did not personally know of the order's illegality. Precedent aside, we would not agree with the argument. Heed must be given not only to subjective innocence-through-ignorance in the soldier, but to the consequences for his victims. Also, barbarism tends to invite reprisal to the detriment of our own force or disrepute which interferes with the achievement of war aims, even though the barbaric acts were preceded by orders for their commission. Casting the defense of obedience to orders solely in subjective terms of mens rea would operate practically to abrogate those objective restrainst which are essential to functioning rules of war. The court members, after being given correct standards, properly rejected any defense of obedience to orders.

We find no impediment to the findings that appellant acted with murderous mens rea, including premeditation. The aggregate of all his contentions against the existence of murderous mens rea is no more absolving than a bare claim that he did not suspect he did any wrong act until after the operation, and indeed is not convinced of it yet. This is no excuse in law.

VIII--SENTENCE

In the report of the House Armed Services Investigating Subcommittee many of the extenuating circumstances affecting Lieutenant Calley are identified:

"In a war such as that in Vietnam, our forces in the field must live for extended periods of time in the shadow of violent death and in constant fear of being crippled or maimed by booby traps and mines. And added to this is the fact that this is not war in the conventional sense. The enemy is often not in uniform. A farmer or a housewife or a child by day may well be the enemy by night, fashioning or setting mines and booby traps, or giving aid, comfort and assistance to the uniformed enemy troops. Under such circumstances, one can understand how it might become increasingly difficult for our troops to accept the idea that many of those who kill them by night somehow become 'innocent civilians' by day. Understandably such conditions can warp attitudes and mental processes causing temporary deviation from normality of action, reason or sense

of values. And the degree of deviation may vary with each individual."

These general circumstances, and mitigating factors personal to Lieutenant Calley, were specifically considered by the convening authority who substantially reduced the confinement portion of the sentence to twenty years.

No doubt Lieutenant Calley would never have directed or participated in a mass killing in time of peace. Nevertheless, he committed an atrocity in time of war and it is in the context of war that we judge him. Destructive as war is, war is not an occasion for the unrestrained satisfaction of an individual soldier's proclivity to kill. An officer especially must exert his mind to keep his emotions in check, so that his judgment is not destroyed by fear, hate, or frustration. Probably Lieutenant Calley's judgment, perception, and stability were lesser in quality than the average lieutenant's and these deficiencies are mitigating to some extent. However, the deficiencies did not even approach the point of depriving him of the power of choice. The approved sentence is not too severe a consequence of his choosing to commit mass murder.