A last-ditch effort was made to get clemency for Bennett from the newly elected Democratic President John F. Kennedy. Despite the opposition to the death penalty by key Kennedy advisers and pleas from Bennett himself, his family, and the family of his victim, Kennedy allowed the execution to go ahead in April 1961. For a president who had been labeled a civil rights supporter, his inaction may seem odd, but after several foreign policy failures, his new administration was already seen as weak. Even more importantly, Southern supporters of Jim Crow dominated his party. Kennedy wasn’t going to open himself to further attack by taking a courageous stand in the Bennett case.11 His handling of the Bennett case may remind many of a political controversy in 1992, when the then-governor of Arkansas and Democratic candidate for president Bill Clinton, allowed the severely brain-damaged Ricky Ray Rector to be executed, to prove that he wasn’t “soft on crime.”

Who gets death in the military?

“It is one of the ironies of patriotism,” declares Robert Sherrill in the opening of his searing 1970 book Military Justice is to Justice as Military Music is to Music, “that a man who is called to the military service of his country may anticipate not only the possibility of giving up his life but also the certainty of giving up his liberties.”12 The Bill of Rights doesn’t exist in the military. Military justice has never been about “justice”—that is, the most elementary efforts to protect the rights of the individual, the presumption of innocence, a jury of one’s peers, or a fair and speedy trail. It has always been about one thing: discipline, the power of the officer corps to command and control soldiers, which has been upheld by the Supreme Court time and time again. Chief Justice Earl Warren said the military was “an enclave beyond the reach of the civilian courts.”13 This “enclave” has had a predictable record of injustice.

During the First World War, millions of Americans for the first time served in the various branches of the armed forces, including a large number of Black soldiers who were stationed in Southern military bases near large cities. At Fort Bliss in Texas, Black soldiers protested the constant harassment by the white officers and soldiers. In 1917, several Black soldiers protested their condition by not reporting to a drill formation and were court-martialed for mutiny, found guilty, dishonorably discharged, and sentenced to ten to twenty years in Leavenworth. A full-scale rebellion broke out in late August 1917, in Houston. Over one hundred Black soldiers from the highly decorated Third Battalion of the Twenty-fourth Infantry marched with their weapons on a police station holding imprisoned comrades, believing them to have been beaten or killed by the police. In the battle that ensued, fifteen whites (five of them cops) and four Black soldiers were killed. In December 1917, sixty-three Black soldiers were court-martialed with forty-eight sentenced to long prison terms and thirteen sentenced to death. According to Luther West, veteran military lawyer and critic, “Two days after the completion of the trial, and some four months before their records of trial were received in Washington, D.C., for ‘appellate’ review, the thirteen Blacks sentenced to die were executed.”14

During the Second World War, the same backward, racist, and arcane system of justice prevailed in the U.S. military. Alvin “Tommy” Bridges, a military policeman during the war and a future police chief, recounted his very bitter memories of “military justice” to Studs Terkel in the Good War: “They shot some of those same guys up there that were—if you’d go to a municipal court, they’d dismiss the case. Depending a lot upon the commanding officer.”15

Near the end of his narrative, Bridges makes clear the extent of summary “justice” and who was responsible:

Eisenhower says that’s the only guy [Eddie Slovik] that was ever executed for it [desertion]. That’s what burns me up, when a gross of them that I know were executed for probably more minor things than what Slovik was. They said he was the only one. We had to make a show of it. The son-of-a-bitches.16

Slovik’s story is recounted in William Bradford Huie’s book The Execution of Private Slovik. Why Slovik? It seems likely that the reason Slovik was singled out was because he deserted at the time of stiffening German resistance in late 1944, when the Allied forces came dangerously close to collapsing on the Western front. Yet, curiously, the army never publicized his execution beyond his company, never told his wife, and buried him in a secret cemetery. It would be nearly a decade after Slovk’s death before Huie began investigating the strange circumstances surrounding it. Despite the efforts of many people, Slovik’s wife never received the paltry $10,000 plus interest she asked for in GI life insurance. Slovik’s remains were finally returned to the U.S. in 1987, to be buried beside the grave of his deceased wife.

While many people believe that Slovik was the only American soldier executed during the war, that is not true. Many were executed on charges other than desertion, and African American soldiers once again bore the brunt of these executions. During the war, the United States virtually occupied Great Britain, and the Visiting Forces Act (VFA) gave exclusive power to the American military to prosecute American soldiers for criminal acts committed in Britain. Among the criminal acts that could be punished by death was rape, which was not a capital crime in Britain. Authorities and vigilantes in the Jim Crow South used the charge of rape in particular to persecute and terrorize Black men. Most charges of rape by white women against Black men were fabrications. Guilty or not, Black men were lynched or sent to the gallows or electric chair, while few white men suffered the same fate.18 Of the sixty-two men executed by the state of Georgia for rape between 1930 and 1977, for example, only four were white, and the rest (94 percent) were Black.19

Jim Crow segregation was transferred to Britain during the war by the U.S. military, replete with segregated bars, clubs, theaters, barracks, even whole towns. When Black heavyweight champion Joe Louis toured Britain in early 1944, he was told he had to sit in a “special” section—colored only. Louis exploded, “Shit! This wasn’t America, this was England…. The theatre manager… knew who I was and apologized all over the place. Said he had instructions from the Army.”20 The U.S. military carried out seventy executions from 1942 to November 1945 in Europe, and of these fifty-five were Black, 79 percent of those executed. Eighteen of those executions took place in Great Britain, with nine convicted of murder, six of rape, and three of both. Of the eighteen executed, eleven were Black, three were Latino, and four were white. Yet Blacks made up only 8 percent of U.S. military forces stationed in Europe during the war.21
According to historians Robert Lily and David Thomson, the sentencing disparities were based on class as well as race:

Whites represented 27.8 percent of the executed soldiers, with African-Americans accounting for 55.56 percent, and Mexican-Americans the remaining 11.1 percent of the 18 cases…soldiers of color are selected far beyond their share of the ranks for this ultimate sanction. The executed men were overwhelmingly from the lowest rank(s)…many of them uneducated, and suffering from a mental disorder or other mitigating factors. No man above the rank of corporal was executed. This suggests that the military do not punish randomly, but selectively, especially to its lowest ranks, and most socially disadvantaged.22

Why? One can only speculate, but the answer may be that it was one way that the officer corps of the U.S. military expressed its opposition to desegregation by deepening the persecution of Black soldiers in its ranks.

Out of the clamor came the Uniform Code of Military Justice (UCMJ), which Congress passed into law in 1950. The separate services would no longer each have their own judicial system but one that would govern all. The code still included capital punishment. While there were changes, such as the defendant’s right to a trained lawyer, or a civilian lawyer, a jury, the presence of enlisted men on courts-martial, and a right to appeal court-martial verdicts, the content remained the same. As the case of John Bennett and the increase in the proportion of Black soldiers executed shows, these changes meant very little. It was still a system dominated by the officer corps. As veteran army lawyer and critic, Luther West, put it,

The military commander was still in charge…He still decided what charges to prosecute, what offenses were to be investigated, and what offenses were to be covered up. He still picked military juries…also picked the prosecution and defense lawyers as well as the military judge.24

The “mere gook rule”

One major political issue that arose during the Vietnam War was the sharp contrast in the treatment of American soldiers accused of killing their officers versus those who murdered Vietnamese civilians. The starkest contrast was between the case of Lt. William Calley, who was accused and convicted of the murder of Vietnamese civilians, and that of Pvt. Billy Dean Smith, an antiwar GI, whom the army attempted to frame for the murder of two of his officers. While they were not the only cases of their kind, they illustrate the hypocrisy and racism of the military judicial system.

On March 16, 1968, the soldiers of Charlie Company of the Americal Division, led by Capt. Ernest Medina and Lt. William Calley, white officers from the Southern U.S., entered the village of My Lai. During a four-hour period the soldiers of Charlie Company massacred around 400 unarmed, elderly men, women, and children, including babies. A cover-up followed involving as many as thirty officers, including the future secretary of state Colin Powell. Despite the cover-up, the massacre became public in the fall of 1969. Eventually, four members of Charlie Company were indicted, but only Calley was found guilty—of killing twenty-two civilians. The court sentenced him to life in prison at hard labor. During the time of his arrest and trial, Calley was under “house arrest” at his apartment on base at Fort Benning, Georgia. He had the run of the base and was treated as something of a celebrity. After his conviction, President Richard Nixon ordered Calley released from the stockade and returned to his apartment. Nixon eventually pardoned him.25

In sharp contrast, Army Pvt. Billy Dean Smith, a Black soldier from California, was accused of killing or fragging two officers and held in solitary confinement for a year before his trial. Fragging refers specifically to the killing of an officer or non-commissioned officer by throwing a fragmentation grenade into his tent, an event that happened usually at night. Fragging was almost always directed at officers who sent into combat soldiers who no longer wanted to fight. In 1969, the Associated Press reported that the army investigated ninety-six alleged fraggings, and 209 in 1970, totaling 101 deaths. The number of fraggings actually grew as the U.S. rapidly drew down troop numbers after 1970. Not all fraggings were expressions of antiwar sentiment; some had to do with covering up criminal activity (drug dealing in particular) or personal vendettas, another sign that the army was disintegrating.

On March 15, 1971, at Bien Hoa, a U.S. Army base in South Vietnam, a fragmentation grenade exploded—this time in an officer’s barracks for an artillery unit, killing two lieutenants and wounding a third. All were white. The unit commander Captain Rigby and First Sergeant Willis decided they knew who did it—Billy Dean Smith. Smith was an outspoken critic of the rampant racism in the army and particularly objected to the segregated bars and clubs in Vietnam. Without any evidence, Smith was charged with two counts of murder, two counts of resisting arrest, one count of assault, and two counts of attempted murder. Smith proclaimed his innocence and pled not guilty to all the charges. If found guilty he would have faced the death penalty.26

Smith’s lawyer, civilian Luke McKissack, went to Vietnam and investigated the situation, and petitioned to have the trial moved to Fort Ord in California. After a change in venue was granted, McKissack wrote directly to the president complaining of the treatment of his client.

I wrote a letter to (then President Richard) Nixon asking him to intervene on Billy’s behalf and also asking why Calley (who had been convicted of 22 counts of murder by this time) was living it up in a bachelor type pad while my guy, who hadn’t been tried yet, was confined to a 6 x 9 cage, seeing daylight one hour a day. I asked if it was because Billy was Black and Calley white, because Billy was an enlisted grunt and Calley an officer, and then I invoked the “mere gook rule.” My guy had allegedly killed white people, Calley had blown away “mere gooks.”27

After McKissack’s vigorous defense and a campaign organized by G.I.s and antiwar activists, Smith was acquitted on all charges. After he left the military, Smith became an organizer for the American Servicemen’s Union (ASU), one of the most serious attempts at organizing a trade union for military personnel. There were many more Calley-like cases, such as the Green Beret murder case and the Son Thang massacre. What is true in all of them is that if an American soldier murdered Vietnamese civilians, they were far less likely to be punished, or punished very severely, for their crimes.29

The war in Iraq and capital punishment

The last soldier to be executed by the U.S. military was a mentally ill Black soldier from a very poor family. The first soldier to be sentenced to death during the Iraq War is a mentally ill Black soldier from a very poor family, who also suffered religious persecution during his time in the army. In the forty years since the last military execution nothing has changed.

Sgt. Hasan Akbar was found guilty in March 2005 of murdering two officers and wounding fourteen others on the eve of the invasion of Iraq; he was sentenced to death.
Akbar was born Mark Fidel Kools, but his parents changed his name after the family converted to Islam. Like many, Akbar enlisted in the army to help defray his college loan payments after he graduated with an engineering degree from the University of California at Davis. But from his earliest teenage years Akbar felt the heavy weight of poverty, racism, and religious bigotry on his shoulders. It is even possible that he was sexually abused as a child. According to statements made to the press by Akbar’s family, his problems seem to have gotten worse after he joined the Army in the late 1990s, exacerbating his loneliness and withdrawal symptoms that were noticed at a young age, including—as revealed in his diary—his harboring of homicidal thoughts.30

John Akbar, his father, testified during the court-martial that his son claimed that other members of his platoon wore Nazi, KKK, and Confederate-flag tattoos. “They would mock him while he prayed,” the father said.31 Akbar, according to testimony at his court-martial, suffered racist insults by soldiers who denigrated his fellow Muslims on the eve of the invasion of Iraq, and after the war and occupation of Afghanistan. His brother Bilal left the air force soon after 9/11 for similar reasons. After Akbar was arrested, the military police claim he voiced his fear that American forces were going to rape and kill Muslim women in Iraq. These very justifiable fears seem to have pushed Akbar over the edge. “He’s mentally ill,” said Maj. Dan Brookhart, one of Akbar’s defense lawyers. His lawyers argued that Akbar should not have been in the army, much less in an army invading a country whose population is predominately Muslim.

Army prosecutor Lt. Col. Michael E. Mulligan’s closing arguments are what anyone would call thinly veiled religious bigotry. Mulligan declared, “He is the enemy,” calling his murders “Akbar’s war,” and that “this is the hatred that lies in his heart.” He displayed, according to media accounts, excerpts from Akbar’s thirteen-year-old computer diary on two screens along with pictures of his victims. “Caucasians, I will kill as many of them as possible,” Akbar wrote in 1992. In 1996, Akbar wrote: “Anyone who stands in front of me shall be considered the enemy and dealt with accordingly,” and “destroying America was my plan as a child, and as a juvenile and in college. Destroying America is my greatest goal.”32

Compare Akbar’s case to white soldiers who committed similar crimes but with victims of different ranks and races. This year Sgt. Aaron Stanley was sentenced to life in prison on two counts of premeditated murder for the deaths of Staff Sgt. Matthew Werner and Specialist Christopher D. Hymer in 2004 at Stanley’s farmhouse in Clay Center, Kansas, about thirty miles west of Fort Riley. “These were extraordinarily violent and senseless murders,” according to Maj. John Hamner, lead prosecutor.33

Army Capt. Rogelio Maynulet was found guilty of the “mercy killing” of an Iraqi civilian. In May 2004, when U.S. troops were pursuing suspected militiamen supporting Shiite cleric Moqtada al-Sadr near the Iraqi city of Najaf, Maynulet and others fired on a car, wounding the driver and a passenger. Maynulet said he then shot the driver. “He was in a state I didn’t think was dignified. I had to put him out of his misery,” Maynulet said. Maynulet’s victim was a local rubbish collector. “He was sentenced with dismissal from the United States Army...there will be no confinement time,” a military spokesman said.34

On January 21, 2006, Chief Warrant Officer Lewis Welshofer, a U.S. Army interrogator, was convicted of causing the death of Iraqi Major General Abed Hamed Mowhoush during a round of questioning in November 2003. Welshofer killed him by putting a sleeping bag over the head of the Iraqi general, sitting on his chest, and covering his mouth. A court-martial jury of six officers decided the officer was not guilty of murder but of negligent homicide. He was fined $6,000, given a letter of reprimand, and confinement to base for six months.35

Can there be any doubt that Akbar has been given a death sentence because he is Black, a Muslim, and a self-proclaimed hater of the U.S. Army? That his victims were officers insured a death sentence.

Lifting the veil on military injustice

Over the past several years, support for the death penalty has begun to wane in the United States. A Gallup poll last fall showed that support for the death penalty has fallen to 64 percent, from a high of 80 percent in 1994. When life without parole is offered as an alternative, support for the death penalty drops to 50 percent.36 There are many reasons for this important shift in public opinion, not the least of which has been the release of more than 100 innocent people (some who came dangerously close to execution) from death row since 1976. There have also been frightening revelations of police torture, judicial corruption, frame-ups, and bad forensics. The whole machinery of death is under more scrutiny than it has been in a generation.

For the still relatively small number of anti-death penalty activists in the United States, the long hard work of many years has begun to payoff. This doesn’t mean that the supporters of the death penalty are in an irreversible retreat. The execution of Stan “Tookie” Williams by California Governor Arnold Schwarzenegger in December 2005, despite significant support for clemency, is one example of this. Another is the pledge by one Republican candidate for governor of Illinois to lift the moratorium on executions that former Governor Ryan decreed in 2000. The fact that the U.S. military is gearing up for its first execution in over forty years contradicts the trend, but it also represents something deeper—the huge strain the war and occupation of Iraq is having on the U.S. military.

Military justice has always been first and foremost about disciplining the troops. The U.S. military is facing its biggest crisis since the Vietnam War, with thousands of troops deserting,37 going AWOL, and wounding themselves in order to avoid combat. It is no accident that, facing this crisis of command, the military wants the death penalty restored as a regular feature of military punishment. Antiwar activists, advocates for soldiers’ rights, and anti-death penalty activists have an opportunity to work together, linking the criminal occupation of Iraq with the military’s unjust treatment of the men and women whom they have spent billions of dollars turning into professional killers.

Joe Allen is a member of Teamsters Local 705 in Chicago and a long-time member of the International Socialist Organization. His three part series on the history of the Vietnam War can be found at www.isreview.org.