Capt. Daniel vs. the president

Aubrey Daniel, L’66, should have been feeling great at the beginning of April 1971. During those early spring days, new possibilities blossomed for him both professionally and personally. Only a few years out of Richmond Law, he had just secured a historic and career-defining court-martial conviction as a young captain in the U.S. Army JAG Corps. At home in Fort Benning, Georgia, he and his wife, Shirley Williams Daniel, W’64, were expecting their second child.

But on the first weekend of April 1971, he was holed up in his office, alternately despondent and furious. Over nearly three days, he meticulously explained why through the careful composition of a message to President Richard Nixon.

“Sir: It is very difficult for me to know where to begin this letter as I am not accustomed to writing letters of protest,” he wrote in its opening. Within days, the full text would end up on Nixon’s desk, in the offices of six U.S. senators, and on the pages of newspapers across the country.

The seeds of Daniel’s fury were sown three years earlier during the infamous massacre of unarmed civilians in a village called My Lai during the Vietnam War. Over five hours on March 16, 1968, members of a company of U.S. soldiers killed more than 500 women, children, and old men during an operation meant to ferret out enemy guerrillas. Victims were shot after being herded into ditches or while running away; women were raped; livestock were destroyed; and huts were set ablaze. The violence ended only when a helicopter pilot and crew intervened, holding off their fellow Americans at gunpoint as they evacuated survivors and reported what was happening up the chain of command, which eventually led to an order that stopped the killing.

For a time, the incident was one of the war’s footnotes, even characterized as a successful engagement. However, word of a massacre began to trickle out as more soldiers heard about it.

One of them, Ron Ridenhour, was concerned enough that he began tracking down participants and eventually wrote detailed letters relaying what he learned from them to the White House, members of Congress, and Pentagon officials. His letters sparked further investigation and the indictment of 1st Lt. William “Rusty” Calley Jr., a platoon leader during the attack. The story exploded into public view after reporter Seymour Hersh got a tip about the indictment and went to Fort Benning, where Calley was being held. Hersh’s visit resulted in a story outlining the breadth of the accusations and was published on Nov. 12, 1969.

Amid the fallout from the publicity and Army investigations, multiple soldiers faced scrutiny and charges relating to the killings and their cover-up. Nearly all of the cases came to nothing, ending before trial or with acquittals, although some of the officers were punished with censure, demotion, and similar penalties. Daniel was the only prosecutor to secure an officer’s criminal conviction related to My Lai.

“I was eager” to lead the Calley prosecution, Daniel said recently via phone. “It was a job I wanted because I was a trial lawyer, and I was the senior trial counsel in the office. I felt like I deserved it, but I never said that to my boss. ... It was something I really wanted, and I got it.”

His work on the case began in September 1969 and included a request, which was granted, to visit My Lai with Calley’s lead military defense attorney, even as the war was in progress around them. The evidence that emerged would show, among other things, that Calley had personally tossed a baby in a ditch and shot it, rifle-butted an elderly man in the face before shooting him, and committed other crimes. He was charged with more than 100 premeditated murders, but it would be impossible to say exactly how many victims there were, Daniel said.

“I was personally morally outraged by what had happened there and what he had done,” said Daniel, who lives in retirement in Tuscany, Italy. “But I never let my personal outrage interfere with my duties as a prosecutor to see that justice was done. I bent over backwards through every phase of the case to make sure [Calley] got everything he was entitled to and more.”

Daniel knew going into the trial that the jury would require a very high bar for conviction. All six members of the panel were combat veterans, five of them with service in Vietnam.

“They knew what Vietnam was like,” Daniel said. “They lost soldiers themselves in combat. ... If there was ever going to be a group [to whom] I was going to have to prove a case beyond a reasonable doubt,” it would be this group.

In court, Daniel overcame obstacles that hampered an earlier prosecution. For example, he subpoenaed Congress for testimony given by witnesses during hearings held in executive session, which are not public, knowing he would not get it. The unsuccessful subpoenas allowed him to demonstrate to the court that he’d made every effort to secure them on the defense’s behalf and should not be prejudiced for his failure to produce them.

Daniel’s closing argument, which was largely extemporaneous and the longest he ever gave, has gained widespread attention over the years for its persuasive force, earning a spot alongside Justice Robert Jackson’s closing argument in the Nuremberg trials in the 1989 collection Ladies and Gentlemen of the Jury: Greatest Closing Arguments in Modern Law, for example. In his closing argument, he carefully refuted Calley’s claim that he was following orders when he committed and ordered killings, and he forcefully rejected the premise of Calley’s defense that such an order would have been lawful anyway.

Echoing Jackson’s Nuremberg reasoning, Daniel told the jury, “You’re not absolved of your responsibility by the order [had one ever been given]. There are just two men guilty as opposed to one. The responsibility is joint.”

Although the evidence — and Daniel’s powers to present it — proved enough to convict Calley in the court-martial, a parallel trial was taking place in American dining rooms, in public squares, on editorial pages, and in the halls of Congress.

For many liberal opponents of the war, Calley was “an unwitting victim of an evil machine,” as the Very Rev. Francis B. Sayre, dean of the Washington Cathedral, put it — a scapegoat being used to shield his superiors from responsibility. For many pro-military conservatives, Calley’s actions in My Lai reflected the grave truth that war is indeed hell, and his prosecution provided more shameful evidence of the nation’s unwillingness to support its military.

National and international press outlets covered every step of the trial, even securing interviews with Calley, other defendants, witnesses, and counsel. But never Daniel, whose refusal to do interviews or answer questions on his way in and out of court earned him the nickname “No-Comment Daniel” among the press, he said.

“You don’t find the rule of law in the courts of public opinion,” he said from Tuscany in a 2019 interview for this story. “If you want to provide protection for those liberties, the only place you can do it is with lawyers and judges who will follow the rule of law.”

Public opinion was not on the prosecution’s side. A reporter who covered the trial for Time, writing on the 50th anniversary of the massacre, recalled Calley being “treated as a hero wherever he went.” During an airport layover, the reporter recalled, an airline agent walked up to Calley and handed him a first-class boarding pass. When Calley cashed a check in a Tennessee bank, the bank president came out to shake his hand.

Daniel, meanwhile, was being vilified. He received mountains of hate mail — “horrible stuff like nothing I’ve ever seen before; it was quite upsetting, to be honest.” Years later, Daniel would be reminded that when his wife went to the hospital to give birth during this period, she required a security escort.

Just after the announcement of Calley’s conviction, a Gallup poll showed that nearly 80 percent of the public disapproved of the guilty verdict. Other polls put the figure as high as 91 percent. The outrage heightened when, two days later, on March 31, 1971, Calley was sentenced to life at hard labor at Fort Leavenworth, Kansas.

Among those paying close attention was President Nixon. Researchers would later discover that the White House even quietly commissioned a poll to gauge whether Nixon should intervene to reduce Calley’s life sentence. He never did that, but he did tip the scales of military justice shortly after the verdict, ordering that Calley be held in house arrest at Fort Benning, pending appeal, and asserting his authority as president to review the court-martial and make the final determination in the case — a move widely interpreted as a signal that Calley should be treated favorably.

Nixon made his announcement on Saturday, April 3, 1971, and Daniel was indignant. He and the jury knew better than anyone the details of Calley’s actions at My Lai, details the general public — and perhaps, Daniel suspected, Nixon himself — were not well-educated about. Over the weekend, he sat in his office writing a letter to President Nixon that then and today would define moral courage.

“How shocking it is if so many people across the nation have failed to see the moral issue which was involved in the trial of Lieutenant Calley — that it is unlawful for an American soldier to summarily execute unarmed and unresisting old men, women, children, and babies,” he wrote.

“But how much more appalling it is to see so many of the political leaders of the nation who have failed to see the moral issue, or, having seen it, to compromise it for political motive in the face of apparent public displeasure with the verdict.”

By the end of the following week, The Washington Post, The New York Times, and other newspapers had printed front-page stories about the letter, reprinted its entire text, and praised it on their editorial pages. The Times said the letter “ought to be read in every schoolroom of America as a courageous statement of what this country is really all about: respect for human freedom, for individual rights and for impartial justice under the law.” A letter to the editor in The Post stated that Daniel “had the courage to remind his commander in chief that in our country the rule of law must be beyond political intervention.”

The letter remains powerful today. In 2018, the Army’s top lawyer, Judge Advocate General Lt. Gen. Charles N. Pede, honored Daniel by declaring him a Distinguished Member of the Regiment and inviting him to address JAG officers in Vincenza, Italy, where he was presented with the award.

“It was the principled stand of Mr. Daniel that I’ve always admired,” Pede said at the ceremony, according to Stars and Stripes. “What’s the right thing? Not what’s convenient or what will avoid criticism.”

Navy JAG veteran and Richmond Law adjunct professor Donna Price teaches students in her military law course about the Calley case and Daniel’s letter.

“Here was a case where somebody was being held accountable, and the commander in chief was undermining that,” she said. “Calley permitted gross, horrendous, criminal conduct to take place, and if it hadn’t been for that helicopter pilot who landed and got out and told his gunner, ‘Shoot them if they shoot me,’ it would have continued. That’s another brave person that we need to talk about. But Nixon was simply playing to the base, and this prosecutor stood up and said, ‘You can’t do that.’”

Price calls Daniel’s letter an act of deep patriotism, contrasting the public service motivation of his letter with Nixon, who, she said, intervened in the Calley case “for base political reasons.”

“The biggest flag in town is not at the local car dealership because they’re the most patriotic people in town. It’s because it sells cars,” she said. “To me the patriot is not just the person who shouts, ‘USA! USA!’ but the person who truly believes in the principles of the Constitution. … When he wrote that letter to Nixon, to me that is about the most patriotic thing you can do.”

The Calley case continued to play out in the press in the years after the 1971 conviction. The U.S. Court of Appeals for the 5th Circuit upheld his conviction at the end of the year — later, the Supreme Court declined to review it — but the following spring, Calley’s sentence was reduced to 10 years. He was released on bond in 1974 and then paroled in 1975 after having served three and a half years of house arrest. For years, he managed his father-in-law’s jewelry store and lives in Florida today, according to press accounts.

Daniel himself has not been one to look back, preferring to let his letter speak for itself over the years. He closely examined one of the issues at the heart of the case in an article for Richmond Law Review in 1973, tracing the legal history of the defense of obedience to superior orders, but otherwise stayed publicly silent. He was discharged from the Army as a captain at the end of April 1971 and took a job with Washington, D.C., firm Williams & Connolly. There, he built a successful career doing what he loved, being a trial lawyer. His cases occasionally made the news — most notably, he represented global conglomerate Archer Daniels Midland in the case immortalized by the film The Informant — but he kept true to his practice of never speaking with the press. He turned down potentially lucrative book deals and speaking tours.

“I didn’t want to profit from something that I considered a national tragedy,” he said.

One gets the sense talking with Daniel that he has no regrets about challenging the commander in chief over the intervention in the Calley case.

“The thing that was so outrageous to me — and really was the tipping point for me, I think — was that I’d been a prosecutor,” Daniel said. “I had prosecuted many young men for AWOL and other offenses. The strict procedure was always that they were brought to the stockade. If they were found guilty, the MPs waited for them and took them back to the stockade.

“When I saw a man and an officer, and he had been convicted of premeditated murder of victims including babies — that he was ordered out of the stockade and put into privileged circumstances — that was more that I could tolerate. I just thought it was so unjust and unfair to the other soldiers who had not been given that, particularly given the offenses for which he had been convicted.”