Small Wars Journal

Strategic Legalism

Mon, 01/02/2012 - 7:08am

…”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 [1]

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 people.”[2] 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 United States needs to curry favor and the loyalty of West German people. 

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 prosecutions of SSgt Wuterich and the Haditha Marines. Bam! There is was in black and white on page has a name.[3] The definition pulled all the loose ends and rabbit trails together, including the Breaker Morant story which is the British version of strategic legalism.[4]

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.[5] In 1956, the last of the 73 convicted war criminals, SS Colonel Peiper[6], is released from prison years after the other 72 releases.

We are currently seeing this same type of strategic legalism in Iraq with the release of several convicted terrorist and insurgents for the murder of US Servicemen. The most recent was the release of Muhammad (Big Ears) Awwad Ahmad for the murder of Capt. John McKenna and L/Cpl Micheal Glover.[7]

Mr. Maguire gives us a number of examples of strategic legalism but interestingly, as the first example, he starts with the court martial of Major “Tony” Waller USMC, 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 publically 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.

Major General 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 then 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[8], retaliation, to pacify Samar. Chaffee orders newly promoted and outspoken[9] Brigadier General Jacob “Hell Roaring” Smith, “Indian Fighter”[10], 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 site 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 creating a ghastly and gruesome scene. There, at Balangiga, General Smith issues his now famous order to Waller and his fellow officers;


“’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 howling wilderness...’

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 arms?’

‘Yes.’ Smith confirmed his instructions a second time.”[11] [12]


Major Waller quickly huddles his officers and counters General Smith’s orders by stating:


“…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.” [13]


Major Waller then begins and executes an exceptional counter insurgency campaign.  He first moves the island interior population into the controlled 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, his company commander’s, Captain Porter and Bearss, assault and seizes the cliffs in November effectively breaking the back of the Samar insurgency. Both Captains would receive Medals of Honor for the Sohoton assault and initiative.

With the 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 December 28th.

December and 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. [14]

 After 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.[15]

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. “For many years afterward, Marine messes would stand whenever a "Samar battalion" officer was present and toast, "Stand, gentlemen, he served on Samar."[16] 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, Elihu Root. 

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-imper1alism League. Mr. Root attempts to stem the political critics with the report, “Charges of Cruelty, Etc., To the Natives of the Philippines”.[17] 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.

The opposition 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.” [18]


Under this 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 address the public relations problem undermining their leadership and Philippine policies and it makes no difference if Major Waller is the “Hero or Butcher of Samar”.[19]

Major Waller 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.[20] Not good days for Mr. Root, the committee will later directly attack Mr. Root.

The similarities 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 “scape goating” the Haditha Marines.

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.[21] 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.[22]

On March 19, 2006, Tim McGirk publishes his now infamous Time Magazine story, Collateral Damage or Civilian Massacre in Haditha?.[23] 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.[24] The House Democratic political machine, fueled by its antiwar momentum, is now running full throttle as they win the majority in November 2006.

The Democrats 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”.[25] In a stunning victory (149 to 86 vote), Hoyer wins the House Majority seat defeating John Murtha despite Pelosi’s backing of Murtha.[26]

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 legitimacy 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 legalism.

On January 5, 2012, SSgt Wuterich will finally start his Haditha 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 prosecution of SSgt Wuterich proceeds despite the collapse of the associated courts martial and a dead congressman’s failed strategic legalism bid for prestige and power.

[1]Peter Maguire, Law and War: An American Story (New York: Columbia University Press, 2001) p. 9 

[2] Ibid., p. 12

[3] Peter Maguire, Law and War: An American Story by Peter Maguire (New York: Columbia University Press, 2001) p. 9

[4] George Witton, Scapegoats of the Empire: The True Story Breaker Morant’s Bushveldt Carbineers

[8] 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)

[9] The then Col Smith provoked the headline, “Guerrillas Caught by Col. Smith Will Be Shot or Hanged” in Dec 1999.

[10] General Smith’s initial tactical practical application, as a officer, was accomplished in the American West’s Indian Wars. General Smith was present at “Wounded Knee”.

[11] Joseph L. Schott, The Ordeal of Samar (The Bobbs-Merrill Company, Inc.,1964) p.71


[13] Joseph L. Schott, The Ordeal of Samar (The Bobbs-Merrill Company, Inc.,1964) p.76

[16] Melshen, Paul, Captain USMC. “He Served on Samar: Hero or Butcher?” Proceedings, November 1979, pp. 42-48.

[17] Hearing before the Committee on the Philippines of the United States; US Congressional Senate Committee on the Philippines, April 10, 1902, (Washinton DC, Government Printing) p. 949

[21] The anti-war movement and John Murtha by Fred Goldstein Dec 4, 2005