This html article is produced from an uncorrected text file through optical character recognition. Prior to 1940 articles all text has been corrected, but from 1940 to the present most still remain uncorrected. Artifacts of the scans are misspellings, out-of-context footnotes and sidebars, and other inconsistencies. Adjacent to each text file is a PDF of the article, which accurately and fully conveys the content as it appeared in the issue. The uncorrected text files have been included to enhance the searchability of our content, on our site and in search engines, for our membership, the research community and media organizations. We are working now to provide clean text files for the entire collection.
Most of those who have committed the six articles of the Code of Conduct to memory probably won’t find themselves—as the American who became a POWin Vietnam found himself—seated on a low stool before an English-speaking interpreter who could make the signing of a “war crimes confession” seem so sensible and the refusal to sign seem so suicidal. At such an unimaginable moment, one needs more than words to fall back on.
The repatriation of U. S. servicemen taken prisoner of war during the Korean conflict was accompanied by two revelations shocking to the conscience of the American public:
► The enemy had attempted maximum exploitation of the prisoners of war in its custody in furthering its war effort.
► The enemy had been successful in its endeavors.
To a nation which less than a decade earlier had vanquished the Axis powers and emerged the leading world power, the misconduct of U. S. military personnel taken prisoner was perceived as contrary to all previous conduct and totally repulsive.
In fact, prisoner misconduct was not new. The word “turncoat” originated during the Revolutionary War, characterizing the conduct of a former American soldier, subsequently convicted of treason, who entered the service of the British while interned as a prisoner of war. Union soldiers’ efforts to escape from the infamous Confederate prisoner of war camp at Andersonville, Georgia, were thwarted by their captors after other Union prisoners had informed on their comrades in return for preferential treatment. During that same conflict, 3,170 Union prisoners joined Confederate forces, while 5,452 Confederates who had been taken prisoner traded Rebel gray for Yankee blue. In varying degrees, incidents of American prisoner of war misconduct were reported during both World Wars.
While the accomplishments of the People’s Republic of China and the North Korean People’s Republic in indoctrinating and manipulating American prisoners were not so successful as first reported, raw prisoner statistics presented a bleak picture. Of the 7,190 U.S- servicemen taken prisoner of war, 2,730—nearly 40%—died in captivity. Although this figure represents a marked contrast to the overall prisoner of war mortality rate of 11% during World War II, it is consistent with Army figures for personnel detained by our Oriental foe during that conflict, of whom 40.4% perished. In both conflicts, long and rigorous marches to prisoner of war camps contributed substantially to the extreme toll.
Other Korean conflict statistics were less easily reconciled with history. One out of three prisoners allegedly was guilty of some form of collaboration. Perhaps most significantly, 23 refused repatriation upon cessation of hostilities on 27 July 1953. To be sure, these figures ate misleading. Ultimately only 192 of the 4,428 returnees were suspected of having committed serious offenses against their comrades or the United States. Fourteen were eventually tried by courts-martial. Eleven were convicted. While the misconduct of a few received disproportionate emphasis to the excellent performance of the more than 1.6 million who served in Korea, with the words “brainwash,” “turncoat,” and “give-up- itis” added to the vocabulary of the man on the street, the military quietly went about the business of piecing together the puzzle placed before it. On 17 May 1955. Secretary of Defense Charles E. Wilson appointed a blue ribbon committee composed of ten distinguished civilian and former military leaders who were to study the problems surrounding the conduct of U.S. military personnel while in a prisoner of war status. Although it
received the greatest attention, the Defense Advisory Committee on Prisoners of War did not limit its study to the Korean War. The Committee submitted its report on 29 July 1955, giving wholehearted recommendation to adoption of the document we know today as the Code of Conduct. Importantly, the committee observed that “From no one did we receive stronger recommendation on this point than from the former American prisoners of war in Korea, [both] officers and enlisted men.’’ As the result of the committee’s study and recommendations the Code of Conduct was promulgated by President Dwight D. Eisenhower in Executive Order 10631 on 17 August 1955.
Major U.S. involvement in the conflict in Vietnam and the USS Pueblo (ager-2) incident in 1968 brought to a conclusion the honeymoon the code had enjoyed with the military. It became painfully obvious that the promulgation of a simple code of six brief paragraphs was not a panacea for the multitude of problems with which a prisoner of war could be confronted. It had not prevented the first surrender in more than a century of a U.S. naval vessel on the high seas. It had not prevented “confessions’’ by her crew. (Ironically and tragically, a “confession” had been exacted from the code’s promulgating authority—the executive of the United States—to effect release of the crew.) Prisoners in the hands of the Viet Cong in the Republic of Vietnam and the North Vietnamese in the Democratic Republic of Vietnam were apparently “cooperating” with their captors and divulging more than the “big four”—name, rank, service number, and date of birth. The escape of Army Major James N. Rowe on 31 December 1968, after more than five years as a prisoner of the Viet Cong, was instrumental in saving the tottering Code of Conduct. Major Rowe reported that while not without flaw, it was a viable document. His escape after a long and debilitating period of captivity was to some degree a manifestation of its success. He persuasively argued that to alter or do away with the code in the midst of a conflict would come as the result of incomplete and in some cases inaccurate information. Furthermore, it would be deleterious to the still- detained American prisoners of war who had risked and suffered much to adhere to the document’s tenets.
As part of the extensive debriefing conducted with the returning prisoners upon conclusion of U.S. involvement in the Vietnam War, the repatriated prisoners were asked their opinion of and experience with the Code of Conduct. The debriefs were followed by questionnaires both official and semiofficial in nature to Southeast Asia returnees and former crewmen of the Pueblo. Professional military men at virtually every career school examined the code in classes, seminars, and theses. They were assisted in their efforts by a plethora of publications written by or with the assistance of former prisoners. All reached the conclusion that behind the code’s six simple paragraphs lies a veritable labyrinth of issues and conflicts applicable to the conduct of U.S. military personnel in combat, especially those who have the misfortune to become prisoners of war. The problem, now studied, deserves resolution.
At the outset of any discussion, we should point out that the Pueblo incident and the Vietnam War did not necessarily provide us with a representative or typical prisoner of war group. The contrast with Korean War prisoners is significant. Of the Korean War prisoners, 98% were captured during the initial six months of fighting, most a product of the postwar occupation forces in Japan. Primarily enlisted, the “typical” prisoner in Korea was a private first class, less than 23 years of age, with a median education of less than nine years. The Army General Classification Test score average was slightly less than 89, which was far under the average for the Army as a whole. Most were captured en masse from hastily organized units, units which one senior officer described as requiring two commanders each— “one to lead and one to drive.” Young, immature, impressionable, they lacked the training, cohesiveness, and particularly the discipline and leadership so vital to survival in a prisoner of war environment. This was especially true of those captured during the early stages of the war. Of those subsequently classified “participators” (those who performed corroborated acts meriting possible disciplinary action by courts-martial), 94% were captured between July 1950 and June 1951 ■
In contrast, 493 of the 564 military prisoners repatriated on conclusion of U.S. involvement in Vietnam were officers. Their near-college degree level of education was vastly superior to any group of prisoners in any previous conflict in which the United States has engaged. Averaging 30 years of age at time of capture, approximately two-thirds were career-oriented. Their extensive military experience required little or no adaptation to the strict discipline required in a prisoner of war environment. The majority were aviators or personnel who had received similar high-risk, specialized training which required and cultivated self-confidence and imagination. Most were “involuntary” prisoners, captured within minutes of suddenly being rendered hors de combat. Most had attended some form of survival, evasion, resistance to interrogation, and escape (sere) course; and while no course can ever prepare an individual completely for becoming a prisoner of war, SERE training aided the prisoners in recognizing the importance of discipline, leadership, and cohesiveness in the prisoner of war environment. Much the same can be said of the crew pf the Pueblo, which took with it into captivity the cohesiveness of a crew which had lived, trained, and undergone the ordeal of evasion and capture together. The Pueblo crew and the Southeast Asia returnees shared one other attribute that distinguished them from their predecessors: virtually all had voluntarily entered the military. Moreover, with few exceptions—such as one young enlisted man who was captured after falling over the side of the USS Canberra (Cag-2 ) in 1967 (and whose conduct as a prisoner was
exemplary)—the nature of their duties had required each prisoner’s voluntary assignment to them.
In weighing the conduct of the American prisoners, it cannot be said that the methods of interrogation with cvhich they were confronted during the past decade ran the gamut of successful methods. The Vietnamese enjoyed a time advantage in duration of captivity which few could anticipate and which it is doubtful that any other captor will again experience. The nature of the information sought—predominantly information to be Utilized in manipulating domestic and international public opinion as opposed to military intelligence— while not unique (in fact, it closely paralleled our experiences during the Korean War) nevertheless received greater emphasis than in previous conflicts. We can assume our foes in future conflicts will place at the minimum the same emphasis on the same intelligence or means of interrogation.
Thus, after two wars and the Pueblo incident, it has become painfully obvious that the Communist states, while all signatories to the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, intend to respect the provisions of the convention only when convenient or advantageous to their overall goals. It is for this reason and in anticipation of similar conduct by those states in any future conflict that the question is asked: Given the test of Vietnam and the Pueblo, did the Code of Conduct serve well the prisoners of those conflicts?
The question must be answered affirmatively but with qualification. Those qualifications with one exception are critical not of the code but of the manner in which the armed services have gone about teaching it and preparing their personnel for possible capture. The greatest difficulty has occurred in the failure of the services to attain even a modicum of agreement or consistency in interpretation. Divisiveness in interpretation created greater schisms among the prisoners during the Vietnam conflict than their captors ever could have hoped to achieve. We must realize the need for an allservice Code of Conduct in every sense of the term. When the enemy starts making the room assignments, there must be only one service: the Armed Forces of the United States.
“ARTICLE I: I am an American fighting man. I
serve in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
‘ ‘AR TICLE VI: I will never forget that I am an A mer-
ican fighting man, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and the United States of America. ”
Articles I and VI are generally viewed as complementary, serving primarily as prefatory and concluding remarks to the body of the code. Yet the controversy which surrounded these articles is indicative of the failure of training and understanding of the code. Not the least of the controversy stems from its applicability. To whom is it applicable? When is it applicable? In defining its applicability, does this mean that it is legally enforceable? All of these questions have been raised during the past decade.
During the Pueblo inquiry, for example, the naval judge advocate serving as counsel to the court of inquiry announced publicly:
“The Code of Conduct is inapplicable in this present situation. We have had an opinion that the crew members of the Pueblo were not prisoners of war . . . and when we don’t have prisoners of war, we don’t have the application of the Code of Conduct ...”
This pronouncement was subsequently recanted. Shortly thereafter, however, the veil of mystique surrounding the Code of Conduct again shrouded it from view. Testifying before a special subcommittee of the House of Representatives Committee on the Armed Services, the Judge Advocate General of the Navy declared that any misconduct by the members of the Pueblo crew would be chargeable under Article 92 of the Uniform Code of Military Justice, inasmuch as the code was promulgated as a General Order of the Navy. Two days later he advised the subcommittee that he had erred in his testimony.
The cloud of confusion raised during the Pueblo inquiries only hinted at what was forthcoming. On repatriation of all prisoners from North and South Vietnam, Air Force Colonel Theodore W. Guy on 29 May 1973 preferred criminal charges against eight enlisted men—three Marine and five Army—for disobedience of orders and collaboration with the enemy while prisoners of war. In dismissing the charges against the Army accused, the Secretary of the Army cited as one of his reasons the fact that an Air Force officer “has no authority over an Army sergeant in a prison camp— none whatsoever. ’ ’ He further declared that the elaborate command structure of the prisoners in North Vietnam “was not a legal or enforceable command structure.” Subsequently, the Secretary of the Army admitted his former opinion had been erroneous— placing him squarely contrary in opinion to views held by the Department of the Navy. The comments of the House of Representatives special subcommittee on conclusion of their Pueblo inquiry remain appropriate, and the authors leave to the reader’s imagination the slight bit of paraphrasing necessary to bring them up to date:
“If the Navy Captain who was counsel to the Naval Court of Inquiry, with all the books and information and consultants officially available to him could come up with an erroneous opinion as to the applicability of the Code, and if the highest legal officer in the Navy found it necessary to change his own testimony before the subcommittee as to the effect of violating the Code, it is certainly impossible to expect that 82 lonely, untrained and abandoned men, suffering imprisonment and torture by the North Koreans could come up with any clear and proper adherence to it. ”
It is now painfully obvious to the former prisoners that, contrary to their training and belief, the Code of Conduct was not intended to be a law in and of itself; it was never intended to stand alone. It is a moral code designed to provide the U.S. serviceman with a standard of conduct in any confrontations with a foe of our nation, regardless of the nature of the conflict or the duties of the serviceman or woman. It serves in part to implement the provisions of the 1949 Geneva Conven
tion Relative to the Treatment of Prisoners of War. R was intended to gain punitive support from the pr°' visions of the Uniform Code of Military Justice which relate to conduct before capture or as a prisoner of war. The Code of Conduct is and always has been intended to be a moral rather than a punitive guide, simple in nature. In simplicity lies its greatest danger: a six-paragraph code can no more anticipate the myriad problems of combat and day-to-day prisoner of war life than can the memorization of “SMEAC” and similar abbreviations completely prepare an individual Marine officer to write an operations plan for an amphibious operation.[1]
This shortcoming was recognized by Department of Defense Directive 1300.7 of 8 July 1964, which was subsequently promulgated by each of the military departments. The directive requires that:
“each member of the Armed Forces liable to capture ... be provided with specific training and instruction designed to better equip him to counter and withstand all enemy efforts against him, and shall be fully instructed as to the behavior and obligations expected of him during combat or captivity. ’ To facilitate training an official explanation was offered to provide clarifying, interpretive discussion of each article of the code. The official explanation retains a high degree of anonymity as well as remaining subject to the individual interpretation and policies of each service. In examining problems encountered regarding the code, therefore, it is well to ask if these problems were caused by the Code of Conduct, the official explanation, or perhaps despite them through differences in interpretation and training between the services.
The greatest controversy over Articles I and VI lies not with applicability, but with the Article VI admoni-
1 SMEAC is the abbreviation for the Marine five-paragraph operation order parts. It stands for Situation, Mission, Execution, Administrative and Logistics, and Command and Signal. #
tion that each serviceman is responsible for his actions. Concern does not lie with the lack of punitive authority, but with deficiencies in the supporting system which precluded prosecution of cases of prisoner misconduct in Vietnam. The recalcitrant prisoner of war poses the greatest threat to the survival of his fellow prisoners. So long as he is a prisoner, however, he cannot be punished; both legally and practically he cannot be court-martialed by his fellow prisoners, nor can he be given a marginal fitness report and transferred to the next cell. Only his moral character and the deterrent of punishment upon repatriation can prevent his misconduct. What if neither of these factors exists? Recognizing the importance and necessity for considering evidentiary, extenuating, mitigating, and psychological factors as well as the political ramifications of postwar prosecution of former prisoners of war, the role of the prisoner of war—whether senior or junior—in future conflicts will be more difficult if we do not insure now that the words “responsible for my actions’’ in Article VI enjoy a firm basis of support. With the exception of our most recent conflict, former prisoners have been court-martialed for misconduct after every major war in our nation’s history.2 If the present provisions of the Uniform Code of Military Justice and supporting regulations do not provide adequately for continuation of this very necessary precedent, we owe it to our potential future prisoners to identify and rectify the deficiencies. Promulgation of the Code of Conduct as a punitive order cannot be accomplished in its present general form, and is not advocated. It was designed with a purpose in mind and will serve that purpose provided supporting regulations exist.
“ARTICLE II: I will never surrender of my own free
will. If in command I will never surrender my men while they have the means to resist.’ ’
Article II addresses a point in which we who are Marines take singular pride. Every Marine knows the valiant efforts against seemingly insurmountable odds of the First Marine Division at the Chosin Reservoir in 1950. We like to think that Lewis B. “Chesty’’ Puller’s remarks when informed that Chinese Communist troops had completely surrounded him epitomize any Marine’s response to similar adversity: “Those poor bastards. They’ve got us right where we want ’em. We can shoot in every direction now. ’ ’
Equal courage was displayed by then-Staff Sergeant 1
Jimmie Earl Howard and his 17-Marine reconnaissance platoon northwest of Chulai on 15 June 1966, against similar disproportionate odds, resulting in Sergeant Howard winning the Congressional Medal of Honor. Each case emphasizes the fact that surrender is anathema to Marines, and that our armed forces will do everything within their power to support a beleaguered unit. In many cases downed aviators were rescued in North Vietnam under the most extreme cases of heroism by the rescuing forces. Where resistance is not practical, however, we must do a better job in preparing our personnel for the alternative of evasion. Our evasion training prior to and during the conflict in Vietnam dwelt more on history and fraternity-hazing techniques than practicality. While Chesty Puller’s remarks at the Chosin Reservoir may inculcate us with Marine pride, few people require historical precedent to want to evade capture. Tales of the past serve to create a false sense of security in personnel who leave sere training thinking “only a few will get caught’’ or “they’ll never catch me.’’ In reality, evasion requires planning rather than haphazard thought; it is not solely a matter of luck. Successful evasion closely resembles any other tactical maneuver. Essential to such a successful maneuver are careful planning and effective equipment. Training in an abstract environment such as offered at the Marine Corps Mountain Warfare Training Center is of little value in jungle or desert evasion and survival. Personnel who went through the short Jungle Survival School in the Philippines were infinitely better prepared to meet the challenges and obstacles in Southeast Asia than those trained in the United States. Our evasion equipment is woefully inadequate. Finally, pre-mission briefings regarding evasion must provide for safety pickup points and other detailed information rather than a chortled “if shot down, head east.” Moral duties must be supported by realistic means.
“ARTICLE III: If I am captured I will continue to , resist by all means available. I will
make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy. ’ ’
In many respects the heart of the code lies within Article III. Our experience with Communist captors has shown that they consider the prisoner of war camp an extension of the battlefield. The Code of Conduct similarly enjoins the American serviceman to continue the fight after the battle. Few occasions ever will be presented in which a prisoner of war camp may be overpowered by the prisoners of war, who then may effect escape. The forms of resistance are more subtle. At the
very essence of resistance are the requirements for a command structure, discipline, and communication, all of which are contrary to the objectives of the captor. Resistance is essential not only to thwart the efforts of the captor but also to boost the morale and esprit of fellow prisoners. While they eventually suffered severe physical punishment for it, the use of the “Hawaiian good luck gesture” (an upraised middle finger) by the crew of the Pueblo contributed positively to the morale of the crew and detrimentally to the propaganda efforts of their captors. Similar acts of resistance by American prisoners in North Vietnam seriously impeded the propaganda efforts of the North Vietnamese. Future training should stimulate the individual serviceman’s imagination for forms and methods of resistance.
The duty to escape was surrounded by controversy in North Vietnam. In a land where the average American was easily distinguishable from his captors and where there was no friendly underground to which an escaping prisoner could turn, the possibility of successful escape was minimal. In the poor dietary environment extant, the caching of food and supplies for escape not only created a security threat to the fragile but essential prisoner of war organization structure but also required personal sacrifice by some who required maximum sustenance. Weighing the likelihood of failure with the sacrifices required of the other prisoners—both in the planning stage and the inevitable reprisal stage—a policy was announced by the senior ranking prisoners which discouraged escape. That policy illuminated the conflict between the duty to escape enunciated in Article III and the pronouncements of Article IV which require a prisoner of war to obey the lawful orders of those appointed over him and to keep faith with his fellow prisoners. Yet the obvious fear with which the North Vietnamese were seized during each escape attempt as well as the severe reprisals visited upon the prisoners by their captors following each attempt indicate the detrimental effect upon their war effort with which the North Vietnamese viewed the possibility of escape. Similarly, the swiftness with which the North Vietnamese reacted to the Son Tay raid in November 1970 suggests that nothing was feared more than the escape of a prisoner. One can only surmise at what effect the escape of one prisoner—the “early repatriation” of a prisoner not chosen by his captors—might have had upon the course of the war.
While our training places a great deal of emphasis on escape, little is said with regard to the liabilities of attempting escape. The Geneva Convention Relative to the Treatment of Prisoners of War recognizes the duty imposed upon prisoners of war by their governments to escape, but also places certain restrictions upon escape attempts. A prisoner may be disciplined only for an unsuccessful escape attempt, that is, fined, have certain privileges discontinued, or suffer more stringent confinement. However, he may be subjected to judicial trial and punishment under the military or civil codes of the captor state for any offense which entails violence against life or limb or otherwise is committed without the sole intention of facilitating his escape. A prisoner of war punished judicially is not entitled to repatriation until the conclusion of the serving of his judicial sentence—a detail generally neglected in the instruction at sere courses.
The term “parole” is defined in the official explanation as a promise “given the captor by a prisoner of war upon his faith and honor, to fulfill stated conditions, such as not to bear arms or not to escape, in consideration of special privileges, usually release from captivity or lessened restraint.” The Code of Conduct’s absolute prohibition on execution of a parole agreement is contrary to paragraph 187b of U. S. Army Field Manual 27-10, The Law of Land Warfare, which provides:
‘ ‘ Temporary Parole. A [prisoner] may be authorized to give his parole to the enemy that he will not attempt to escape, if such parole is authorized for the specific purpose of permitting him to perform certain acts materially contributing to the welfare of himself or of his fellow prisoners. Such authorization will extend only for such a period of time as is reasonably necessary for the performance of such acts and will not normally be granted solely to provide respite from the routine rigors of confinement or for other purely personal relief. ... A [prisoner] may give parole of this nature only when specifically authorized to do so by the senior officer or noncommissioned officer exercising command authority.”
The conflict deserves resolution, inasmuch as FM 27-10, while not binding on the other services, is used extensively by all services as a training and policy reference.
A form of parole was effected during the Vietnam conflict which proved detrimental to the morale of the prisoners who remained in captivity. This parole involved the ‘‘early release” program in which prisoners of war chosen by their captors accepted early repatriation contrary (with one exception) to the direct orders of prisoners senior to them.[2] While the Geneva Convention Relative to the Treatment of Prisoners of War provides for the repatriation of wounded and sick during hostilities, absent a specific agreement between the Warring parties there is no provision for the repatriation of able-bodied prisoners prior to the cessation of hostilities. There is in particular no authority for the acceptance of repatriated individuals by private individuals or groups rather than by officials of the United States government. The acceptance of repatriation by three officers of the armed forces of the United States on 17 September 1972 occurred at a critical point in negotiations for the cessation of hostilities between the conflicting parties, was detrimental to those negotiations, contrary to the Code of Conduct, and potentially harmful to the welfare, discipline, and morale of the remaining prisoners. Like their predecessors, no disciplinary action was taken against the returnees. To the contrary, each was given preferential treatment hardly befitting his conduct. The group which received the prisoners, The Committee of Liaison with Families of Servicemen Detained in North Vietnam, accepted these prisoners not for the claimed humanitarian purpose but rather for their individual and collective political benefits and to assist the Democratic Republic of Vietnam in its war efforts. While it is unfortunate that our laws do not prevent the travel of U. S. citizens to an enemy state during hostilities with that state (although the members of the “Committee” could have been prosecuted for violation of the Logan Act, which forbids private citizens from interjecting themselves into the conduct of United States foreign affairs), the greater tragedy is that the law supports neither the code’s moral prohibitions nor a senior officer’s prohibitive directives regarding the acceptance of parole. In addition to giving future senior officers the authority to issue enforceable orders, provision must be made to forbid the acceptance of repatriation or parole leading to release by any prisoner of war to any person or group other than a duly-authorized representative of the government of the United States.
ARTICLE IV: If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.' ’
Article IV states a basic premise: it is essential that prisoners of war remain faithful one to another. The adage “divide and conquer’ ’ is true both with regard to the tactics of the captor and as the antithesis to the formula for survival in a prisoner of war environment. The prisoner who has suffered extreme hardship through torture, illness, disease, or personal tragedy (news the North Vietnamese were always quick to deliver) can be pulled through his crisis only with the aid of his fellow prisoners. The prisoner who fails to assist his fellow prisoner in the long ran is acting contrary to his own best interests as well as those of the group.
The last two sentences of Article IV created much of the controversy during the period of detention and greater controversy after repatriation. First, seniority is not easily determined. A Marine first lieutenant shot down in 1965, for example, may be the senior man in his compound. As it is his duty to do, he acts as the leader within that compound. Policies are adopted, directives issued. In 1970, a recently shot down Air Force captain is placed in the compound. He knows nothing about prisoner of war policies, directives, or communications. Reflecting on the Code of Conduct training of his service, his reaction to these matters is one of rejection. Overnight the stability and strength of the compound is virtually destroyed, perhaps as anticipated by the captors. A possible resolution of the problem comes with determination of seniority between the lieutenant and the captain. The lieutenant has a date of rank of 1 December 1964. He has heard from newer Marine prisoners that he was selected for promotion to captain and probably will have a date of rank of July or August, 1966. The Air Force captain, in contrast, was commissioned in June, 1967, and promoted to his present rank only a month before he was shot down. The Marine lieutenant, then, not only has five years of experience
as a prisoner of war, but from a practical if not legal point of view is senior to the captain. On paper and when contemplated in a peacetime environment, the solution is simple: actual rank controls. In the prisoner of war environment, however, where survival and resistance often are balanced on the weakest tenterhooks, the decision is not so easily reconciled. In some instances in Noah Vietnam, seniority was determined according to dates of rank at the time of shoot-down of the earlier prisoner. In other cases more complex formulae were used. The inconsistency in time in grade required by the services fuaher served to compound the problem, a situation which the captor readily exploited at every possible opportunity.
The problem just discussed may be incapable of resolution. Others equally serious do merit consideration and correction, however. Command and discipline are essential to the military, particularly in the prisoner of war environment. The importance of command and discipline is recognized by Article IV. Command and chain of command permit a unity of effort and a degree of strength and consistency in communicating with the captor. Decisions made in a prisoner of war environment seldom are greeted with universal enthusiasm. Because of the controversy which surrounded the code and the individualistic makeup of the prisoners in North Vietnam, many orders were obeyed due to the misconception that they were legally enforceable. While most prisoners would have heeded the orders of the senior ranking officer notwithstanding his lack of authority to command, the controversial nature of some of the decisions of the senior ranking officer suggests that cracks might have appeared in the otherwise strong prisoner of war bond had some prisoners been aware that their obligation to obey their senior ranking officer was only moral in character.
The problem as perceived by the service secretaries is that definitional provisions in the Manual for Courts- Martial do not provide for the offense of violation of an order of a superior unless the superior is of the same service or if of another service, the superior has been duly placed in the chain of command over the subordinate. The ad hoc nature of a prisoner of war command organization has precluded its recognition in the past as an official command by the Department of Defense, thereby preventing a senior from one service from being duly placed in the chain of command over subordinates from other services as required by the Manual for Courts-Martial. Yet no system can operate on implied or moral bases. Absent correction of this oversight— either by modification of the provisions of the Manual for Courts-Martial or by official recognition of prisoner of war command organizations—the Code of Conduct places an unconscionable burden upon those senior in
rank. The responsibility has always existed, even in the days preceding the code, for that is the responsibility inherent with the assumption of higher rank. It is time, however, to supplement moral responsibility with legal authority.
“ARTICLE V: When questioned, should I become <t
prisoner of war, I am bound to give only name, rank, service number, and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.' ’
The tenets of Article V were surrounded with debate among the prisoners both in Noah and South Vietnam. The second sentence suggests the realities of interrogation and the individual’s susceptibility to sustained coercion, while the last sentence bespeaks contradicting absolutes. In the contradiction of those sentences lies the one criticism of the Code of Conduct per se. The ambiguity of Article V is resolved by the official explanation in recognizing the possibility of the use of coercive measures to obtain information. Our experience in Vietnam showed that few can withstand sustained mental and physical toaure. Neither the code nor the official explanation addresses the principal issues of the extent of resistance or the method of resistance. Indeed, the absolutes expressed in pre-Vietnam SERE training led to a misperception of individual capabilities and to a very damaging sense of self-betrayal once contradicted by actuality.
Training in the future must recognize reality—reality as expressed through the experience and guidance of former prisoners of war. Every person should resist interrogation efforts to the best of his abilities. But a decision must be made regarding the extent of resistance. Should a prisoner of war resist interrogation to the death or to the point of irreparable mental or physical injury? Similarly,'what information beyond his
name, rank, service number, and date of birth should a prisoner refuse to divulge on pain of death? For example, the North Vietnamese were furnished with biographical information on most of their American prisoners by sympathizers in the United States. They were also provided with a military pay scale. Knowing a prisoner’s rank and entry date into the military, openly displaying the pay scale, should the prisoner go to the wall” to resist divulging the obvious? Likewise, if a raptor displays technical manuals on the TOW or the F-14, should a prisoner risk loss of life or limb refusing to answer questions to which the captor very obviously already knows the answers? The foregoing questions address a dilemma not easily resolved. While the information requested may seem harmless and not worth resistance, inevitably the line of resistance must be drawn somewhere.
Resistance to interrogation may take other forms, not the least of which is the divulging of false information. Pre-Vietnam Navy and Marine SERE training condemned such tactics as a form of weakness (the Air Force, in contrast, encouraged it). Actual Vietnam experience showed it to be invaluable if not without its drawbacks. It is not suited to the training of the masses, for it generally requires the concoction of credible answers to particular questions. It requires some degree of premeditation, particularly in multi-crewed aircraft. It requires constant vigilance, as an interrogator will strive to test a story’s veracity. Finally, it requires common sense. For example, if ten A-4 pilots are queried as to the optimum dive angle of that aircraft and all ten give false but credible answers, it will not take the interrogator long to realize that the optimum dive angle is the one angle he did not receive. Future training regarding Article V must be prepared to recognize and address these problems rather than talk in the moral absolutes of an ostrich.
Conclusion. More than three years have passed since the repatriation of U.S. prisoners of war from the hands of their Vietnamese captors. Myriad studies have been conducted. Each service, for example, was required to discuss with its former prisoners the value of the Code of Conduct in light of their experience. The preceding paragraphs suggest but a few of the many problems which exist. With the exception of the contradictory statements of Article V, most problems lie not with the code but with the multiservice approach to interpretation and training. Each service recognized the need for reconciliation of these differences in submitting its report to the Secretary of Defense in July 1974. Yet, despite the passage of time, no action has been taken by the Secretary of Defense to address these problems. In the interim the military has experienced the 1973 Arab-Israeli War, the evacuation of U.S. and foreign nationals from Cyprus, Cambodia, and the Republic of Vietnam, and the Mayaguez incident. In a sense of frustration each service has taken unilateral steps to correct perceived deficiencies, some adding to the interpretational schism already extant. The interregnum is a disservice to those who have gone before and a liability to future prisoners. Differences in interpretation must be resolved, ambiguities clarified. Training must be designed to meet the need of each individual in the accomplishment of his mission as a combatant and as a possible future prisoner of war. Most important, it must be done NOW.
The opinions and conclusions offered herein are those of the authors and do not necessarily represent the views of the Department of Defense, the Marine Corps, or any other government agency. The article was submitted to the Proceedings in March 1976. On 2 April, the Secretary of Defense announced the appointment of an 11-member Code of Conduct Review Board to deal with the myriad of issues the authors discuss. The board was due to submit its findings in July—after this article went to press. As it began its work, the board requested and was provided a copy of this article by the Proceedings.
Colonel Dunn received his Bachelor of Science degree from the University of Utah in 1957. He had been designated a naval aviator upon commissioning as a second lieutenant in the Marine Corps in March 1953. During his career he qualified in 14 types of aircraft while serving as an all-weather fighter pilot, attack pilot, transport pilot, and flight instructor. He also served as an aide-de-camp, company commander at the Marine Corps Recruit Depot, Wing staff officer, and Officer Selection Officer. He was shot down on 7 December 1965 while flying an F-4B Phantom over North Vietnam. He evaded enemy forces for more than six days before being captured. Repatriated on 12 February 1973, he served as the Commanding Officer, Marine Air Training Support Group, Naval Air Station, Jacksonville, Florida, prior to his retirement in August 1974. His combat decorations include the Silver Star, Legion of Merit with “V”, Bronze Star with “V”, and two Purple Hearts. He now resides in Keystone Heights, Florida, where he is active in community affairs.
Major Parks was enlisted by his coauthor in the Marine Corps Platoon Leaders Class (Law) program in 1961. Although he has been designated a judge advocate throughout his career, he has also served as a reconnaissance platoon leader, infantry company commander, and shore party company commander. He attended Marine Corps SERE training in 1964. He has served in his present assignment as the Marine Corps Liaison Officer to The Judge Advocate General’s School, U. S. Army, since 1973. He teaches the Law of War (including the Code of Conduct) at The Judge Advocate General’s School, and has lectured at the Army War College, the Naval Academy, and the Marine Corps Amphibious Warfare School and Command and Staff College. Named one of the Outstanding Educators of America in 1975, he was also the 1975 recipient of the Navy League of the United States Judge Advocate Distinguished Writing Award. A graduate of Baylor University and Baylor School of Law, he is slated to report this month to the Navy’s Office of Legislative Affairs.
[1] A Marine, tried in 1971 by general court-martial for alleged misconduct as a prisoner of war, was acquitted based upon a defense of coercion and duress. Administrative action was taken by the Secretary of the Navy against one senior naval officer and one senior Marine officer in lieu of trial by court-martial for misconduct. The Army and Air Force took no adverse actions.
[2] Only the aforementioned sailor from the Canberra was authorized early repatriation by the POW command organization.