Bob Weimann |
…”Strategic legalism”…the use of laws or
legal arguments to further larger policy objectives,
irrespective of the facts or laws… Law and War: An American
Story by Peter Maguire
defines “strategic legalism” in his book Law and War: An
American Story. His book focuses primarily on the Nuremberg
Trials immediately after the Second World War. Mr. Maguire
discusses the extraordinary effort the US made to ensure the
German war criminal trials are just and legal. In addition, he
exposes an implied mission “that the trials would do more than
render justice; they would also serve to "reeducate" the German
The strategic legalism occurs when the German war criminals
sentences are systematically commuted and the convicted are
quietly freed from prison. The United States releases these war
criminals because as a nation, we are well into the Cold War and
the US needs to curry favor and the loyalty of West Germany
I appreciate Mr.
Maguire’s work, especially the crystal clear definition of
strategic legalism. For me, it was a bit of an epiphany as I
researched the reasons for the unfair political prosecutions of
SSgt Wuterich and the Haditha Marines. Bam! There is was in
black and white on page nine...it has a name.
The definition pulled all the loose ends and rabbit trails
together, including the Breaker Morant story which is the
British version of strategic legalism.
The Malmedy Massacre Trial is an example of Peter Maguire’s
strategic legalism. Seventy-three members of Kampfgruppe Peiper
were convicted for the murder of 84 American POWs during the
Battle of the Bulge. The tally of German convictions is
43 sentenced to death by hanging, including
General Sepp Dietrich commander of the 6th SS Panzer
Army, his chief of staff, General Frita Kramer, Lieutenant
General Hermann Priess, commander of the I SS Panzer Corps, and
the famous regiment and battle group commander SS Colonel,
Jachim Peiper; 22 others are sentenced to life; and 7 sentenced
to prison for 10 to 20 years.
In 1956, the last of the 73 convicted war criminals, SS Colonel
is released from prison years after the other 72 releases.
Mr. Maguire gives
us a number of examples of strategic legalism but interestingly,
as the first example, he starts with the Major “Tony” Waller
USMC, Court Martial at the end of the Philippine American War
(1899-1902). Mr. Elihu Root, then Secretary of War, would
attempt to scapegoat the wily Major Waller as the first American
victim of strategic legalism. My purpose in this article is to
add another example to the list of strategic legalism cases:
SSgt Frank Wuterich and the Haditha Marines.
In March 1901 the
Philippine American War was drawing to a close. The rebel
leader, Emilio Aguinaldo, is captured and publicly swears an
oath to the United States Authority in the Philippines. Two
areas of insurgency remain, one in Batangas on Luzon and the
other, the Island of Samar.
Adan R. Chaffee USA, the Military Governor of the Philippines,
dispatches troops to the Samar to occupy the ports and prevent
military supplies from getting to the Samar insurgency. On
August 11, 1901, the 74 man C Company, 9th Infantry
Regiment, commanded by Captain Thomas W. Connell, lands at the
small village port of Balangiga, Samar.
On September 28,
while the Company is at breakfast, over 400 bolo welding
insurgents and villagers, led by the village mayor, police chief
and priest, attack and swarm the soldiers at their Sunday
morning meal. Caught completely by surprise, the Company C
soldiers fight back as best they can with table knives, forks,
chairs and anything else that is at hand. A small group of
soldiers get to their weapons and fight their way out but the
final causality count is 48 killed, 22 wounded with only four
soldiers surviving without wounds. All the company officers are
killed and 100 rifles with 25,000 rounds of ammunition are
missing and presumed to be in the insurgent hands.
The new and
strongly emerging US “yellow press” describes the attack as the
worst defeat since the Little Bighorn and leads the charge for
the American public’s call for retaliation. President Teddy
Roosevelt orders his Secretary of War, Elihu Root, and General
Chaffee to use the “most stern” measure of war,
retaliation, to pacify Samar. Chaffee orders newly promoted
Brigadier General Jacob “Hell Roaring” Smith, “Indian Fighter”,
to Samar and reinforces his command with Major “Tony” Littleton
Waller and his 315 US Marines.
On October 24,
1901 Major Waller and General Smith arrive at Balangiga, the
scene of the massacre. The town has been abandoned by the
villagers since the massacre but the local pigs have gotten into
graves of the fallen Company C soldiers. There, at Balangiga,
General Smith issues his now famous order to Waller and his
“’I want no
prisoners. I wish you to kill and burn; the more you kill and
burn, the better it will please me. I want all persons killed
who are capable of bearing arms in actual hostilities against
the United States... The interior of Samar must be made a
Since it was a popular belief among the
Americans serving in the Philippines that native males were born
with bolos in their hands, Major Littleton Waller asked, "I
would like to know the limit of age to respect, sir."
"Ten years," Smith said. "Persons of ten years
and older are those designated as being capable of bearing
"Yes." Smith confirmed his instructions a second
quickly huddles his officers and counters General Smith’s orders
“…I’ve had instructions to kill everyone over ten years old….But
we are not making war against women and children…We are making
war on men capable of bearing arms. Keep that in mind no matter
what other orders you receive.”
Major Waller then
begins and executes an exceptional counter insurgency campaign.
He first moves the island interior population into the ports to
establish control over the insurgent’s food and support. His
Marines aggressively patrol, harrying the insurgents and
gathering the necessary intelligence on the enemy. Waller
quickly learns of a guerrilla strong hold, the Sohoton Cliffs,
located in the Samar interior. Organizing his Marines into three
columns, he assaults and seizes the cliffs in November
effectively breaking the back of the Samar insurgency.
insurgency under control General Smith orders Major Waller to
recon a route across the interior of the island for a future
telegraph line. Waller begins this expedition across Samar on
January are the height of the rainy season on Samar where the
monthly rainfall can amount to 15-16 inches or more. Waller’s
patrol is bogged down by rain, swollen rivers, leaches, disease,
and jungle. The sick soon out number the healthy and rations run
out. In an attempt to get a rescue party to his sick, Waller
breaks off and leads a small group out of the jungle. The
surviving members attempt to back track as best they can and are
rescued on 18 January. Ten Marines perished on the trail from
exposure and fever, and native porter’s mutiny and attack the
Marines during the march. Between the patrol and his rescue
attempts, Waller would personally hike over 250 miles and fall
victim to the fever.
investigation and in accordance with US Army General Order 100 (Lieber
Code), Waller orders the execution of the 11 mutinous porters on
20 January. The Lieber Code has no tolerance for treachery:
spies will be hung, war-rebels are eligible for the death
sentence and guides that mislead and mutiny can be put to death.
Waller and his
battalion of Marines are relieved on 26 February 1902. In four
months they have ended the insurgence on Samar and Waller has
become one of the legends of the US Marine Corps. Early in
March, however, a false news story, alleging atrocities and
torture as part of the Waller’s Samar executions, hits the news
papers. The award and surprise Waller receives upon his return
to Manila is a court martial ordered by the Secretary of War,
While Waller is
fighting on Samar, the anti-war and anti-imperialism political
pressure on President Roosevelt and Secretary of War, Elihu
Root, is growing from the opposition party led by the American
Anti-imperialism League. Mr. Root attempts to stem the political
critics with the report, “Charges of Cruelty, Etc., To the
Natives of the Philippines”.
This report actually backfires on Secretary Root because it
documents 44 war atrocities committed by American troops. These
atrocities have supposedly been properly investigated and the
guilty punished. The political opposition quickly shoots holes
through the report, especially concerning the punishments for
the convicted that seem very light.
party then begins to call for a congressional investigation.
Early in March, when Major Waller returns to Manila, a false
news story, alleging atrocities and torture as part of the Samar
executions, hits the news papers:
Some of the circumstances in the case are particularly
atrocious. One native was tied to a tree and publicly shot in
the thigh. The next day the man was shot in the arms. The third
day, he was shot in the body, and the fourth day he was killed.
pressure Mr. Root suddenly realizes he needs a scapegoat. Major
Waller seems to be a proper “goat” designate and Root orders
Major Waller’s Court Martial. Secretary Root and President
Roosevelt need to relieve the public relations problem
undermining their leadership and Philippine policies and it
makes no difference if Major Waller is the “Hero or Butcher of
successfully defends himself at his court martial. The critical
moment occurred when the prosecution makes a tactical error in
calling Waller’s commanding officer, General “Hell Roaring”
Smith. The general, under Waller’s questioning, commits perjury
not disclosing his verbal orders to “kill and burn”. The
combination of Waller’s acquittal and the public disclosure of
Smith’s order to kill everyone “tens years or older” sets off a
political firestorm. This pressure results in the formation of
the Lodge Committee Hearings charged to investigate the alleged
war crimes committed in the American-Philippine War.
Not good days for Mr. Root, the committee will later directly
attack Mr. Root.
between the Waller story and Haditha are striking. In both cases
a bad news story kicks off the media firestorm and political
rush to judgment. In Waller’s case, Mr. Root leads the charge
for Waller’s political scalp. In the Haditha case, Mr. Murtha
the Pennsylvania Congressional Representative, attempts to
garner political power and position by “scapegoating” the
In 2005, the
Democrats, as the minority party, need a credible anti-war
spokesman as they push for their goal of a congressional
majority. John Murtha (D-PA) is the perfect antiwar spokesman,
as a former Marine officer, with close ties to the Pentagon
Brass provided by his powerful Chairmanship of the House
Appropriations Defense Committee.
As 2005 ends and 2006, the election year, begins, Murtha ramps
up his antiwar attacks because his party is pushing hard to take
over the House of Representatives majority leadership. Murtha
gains favor and backing from Nancy Pelosi, the House Minority
Leader for his antiwar efforts.
On March 19,
2006, Tim McGirk publishes his now infamous Time magazine
story, "Collateral Damage or Civilian Massacre in Haditha?".
Mr Murtha now has another issue to push his antiwar campaign. On
May 14, 2006, before the Haditha investigation is complete,
Murtha hits the Sunday morning news shows and publicly accuses
the Haditha Marines of “cold-blooded murder” and allegations of
a military cover-up.
The House Democratic political machine, fueled by its antiwar
momentum, is now running full throttle as they win the majority
in November 2006.
prepare to take over the House of Representatives majority in
2007; this will move Nancy Pelosi to Leader of the House,
opening the seat for House Majority Leader. Two congressmen,
John Murtha and Steny Hoyer, run for the majority leader seat.
Nancy Pelosi throws her support behind Murtha but even the
Democrats recognize that Murtha is a “loose cannon”. In a
stunning victory (149 to 86 vote), Hoyer wins the House Majority
seat defeating John Murtha despite Pelosi’s backing of Murtha.
When John Murtha
made his accusations of a military cover-up and cold blooded
murder against the Haditha Marines he was practicing “strategic
legalism”. He was not after justice but was after the House of
Representatives Majority seat and it made no difference if SSgt
Wuterich and his squad of Marines followed their orders and
combat ROE. John Murtha was after personal gain at a cost of
throwing a few combat Marines “under the bus”. There you have
it; Waller, Malmedy and now Haditha; three cases of strategic
On January 5,
2012, jury selection will commence for SSgt Wuterich's court
martial. The Haditha incident occurred on November 19, 2005,
more than six years ago. Originally, there were eight Marines
charged and pending court martial for their battalion’s combat
actions in Haditha. Five of the defendants charges were dropped;
one went to court martial and was found not guilty on all
charges; the seventh, the battalion commander, had his court
martial dropped because of “undue command influence”. He would
receive a Board of Inquiry that took issue with his reporting
procedures. Yet, the persecution of SSgt Wuterich proceeds
despite collapsed courts martial and a dead congressman’s failed
bid for prestige and power.
We must continue
to support SSgt Wuterich because we recognize the “strategic
legalism” of Representative John Mutha, even if SSgt Wuterich’s
senior military leadership does not.
Bob Weimann USMC,
Maguire, Law and War: An American Story (New
York: Columbia University Press, 2001) p. 9
US General Order 100 (the
Lieber Code) Article 27: The law of war can no more
wholly dispense with retaliation than can the law of
nations, of which it is a branch. Yet civilized nations
acknowledge retaliation as the sternest feature of war.
A reckless enemy often leaves to his opponent no other means
of securing himself against the repetition of barbarous
outrage. (emphasis added)