A Discussion with Cary Donham – West Point’s First and Only Conscientious Objector

Episode Notes

Transcript

Jonathan Amarilio:

Hello everyone and welcome to CBAs @theBar podcast where we have unscripted conversations with our guests about legal news, topic stories, and whatever else strikes our fancy. I’m your host Jon Amarillo of TAF Law, and I’m joined today by a former colleague of mine now retired. Cary Dunham. Lawyers often have interesting life paths that led them to the law, but Cary’s story, his journey is among the most unique I’ve ever come across. We’re going to get into some of the details here today with him, but this is the gist to this day. Cary is the only West Point cadet to claim conscientious objector status. It’s such an odd thing to say, almost a contradiction in terms a cadet at America’s premier military academy standing up and saying that he doesn’t believe in war. We’re going to talk about that with Cary. We’re going to talk about his newly released autobiography, A Wrinkle No Long Gray Line when Conscious and Convention Collide. And since this is a legal podcast, we’re going to discuss the court battle that Kerry fought to gain recognition from the Army as a conscientious objector. But first, let’s say hello. Hi, Kerry. Welcome to the podcast.

Cary Donham:

Hi, Jon. Good to see you.

Jonathan Amarilio:

It’s good to see you too, my friend, your book. Thank you for sending it over. I really enjoyed reading it. It’s a fascinating case study, I think, of a moral dilemma and a legal context. But before we get into that, I thought maybe we could start at the beginning. Tell me in the audience something about where and how you grew up, because I think that informs this discussion quite a bit, doesn’t it?

Cary Donham:

Yeah, it does. I grew up in southern Illinois, oldest of four children, born in 1949. My dad was a school teacher. My mom was a stay at home mom. If you know anything about southern Illinois, Southern Illinois is more like the deep South than northern Illinois, north of I 80.

Jonathan Amarilio:

My wife’s from there. It’s more Kentucky than Chicago.

Cary Donham:

Oh, yeah, way more. In some ways it seems like it’s more Mississippi even than Kentucky now that I live in Kentucky.

Jonathan Amarilio:

Fair enough. Was religion a big part of your upbringing? Because I know that has a big role to play in what we’re talking about here today.

Cary Donham:

Yeah. My mom in particular was very religious. She grew up in a fundamentalist Baptist family in southern Indiana, one of eight kids. So we always went to church. I was very active. Went to Sunday school, became the president of the local Methodist Youth Fellowship while I was there.

Jonathan Amarilio:

Yeah, I’m getting a flavor for it. So you grew up in an environment like that? Conservatives not the right word, but you know what I mean.

Cary Donham:

Yeah. But I did take the church seriously in terms of what the teachings were.

Jonathan Amarilio:

Okay. So you did well in high school, obviously, because you went to West Point.

Cary Donham:

Yeah, I did. Well in high school

Jonathan Amarilio:

Did you have relatives who served in the military?

Cary Donham:

My father was a pilot in World War ii. He was a captain. He won the air medal, served in the Philippines and Australia and New Guinea. And I should say New Baden is only nine miles from Scott Air Force Base, which back in the sixties was one of the largest Air Force bases in the country.

Jonathan Amarilio:

Okay, so a bit of a military town.

Cary Donham:

It was a military town. My parents were all for me going to West Point.

Jonathan Amarilio:

Why did you select West Point?

Cary Donham:

I might have chosen the Air Force Academy, but my eyes weren’t good enough. I mean, you had to have 2020 vision to even get your foot in the door to go to Air Force Academy. West Point was a little more forgiving about eyesight,

Jonathan Amarilio:

But not about academic rigor. I mean, oh

Cary Donham:

No. West

Jonathan Amarilio:

Point is the premier military institute in a country.

Cary Donham:

Yeah, still considered with the time I wrote the book number 18 or so, best College in the country. Of course that was US News and World Report. Take that with a grain of salt, but still it was a very, very good school.

Jonathan Amarilio:

But I side aside, why a military academy? Why not University of Illinois?

Cary Donham:

A couple reasons. One, I was always worried about money. My dad’s salary as a school teacher wasn’t very much. I was the oldest of four, and you go to West Point, it’s basically free. So that was one concern. And then this was in 1967 when you got out of high school, you had to deal with the draft. That was just a big, big consideration. This was before the lottery, so you’re either going to get a deferment,

Jonathan Amarilio:

Which college kids got in 1967. You could go to any college. It didn’t have to be West Point, obviously

Cary Donham:

Until you finished college, right? Yeah. Let’s see. Divinity students got a deferment. People who worked in agriculture got a deferment. There was a conscientious objector, but ultimately you were going to be facing the draft. My thought was if I go to West Point, I’ll end up an officer. I thought that was a better way to use my talents and just be cutting to the chase. I’d be following in my dad’s footsteps, being an officer.

Jonathan Amarilio:

So at that point, you’re a 17-year-old kid, you’re going to West Point. Obviously you’ve had this religious upbringing, but you weren’t thinking to yourself anything. I don’t believe in war. I don’t believe in justified killing. Right.

Cary Donham:

No. That was not something that I thought about at all.

Jonathan Amarilio:

So when did you start having those thoughts?

Cary Donham:

The thoughts really started, let me put it this way. When I went through Beast Barracks, which are the eight weeks summer before your plebe year starts, your first West Point year, we had to do the bayonet drill where you had to yell at the spirit of the bayonet is to kill Sarah. And that was kind of like, oh, that’s not what I was expecting. But I said, well, but we’re all doing it. So okay. Where it really hit me though was during the summer before my junior year, I was a squad leader. I was in charge of 11 young new cadets who were just facing West Point the first summer. And my job was to help them both teach them how to survive in West Point and teach them discipline and so on. Well, one of my jobs as all squad leaders jobs was to teach bayonet drill.

So I would be up on a stand in a field way down close to the Hudson River, away from the rest of the campus with a rifle, with a bayonet fixed on it. And I would go through the different bayonet moves with these 11 new cadets in front of me. And one of the things that was part of the training was to ask being, I mean like yell, what’s the spirit of the bayonet men? And the answer is to kill, sir, I didn’t hear you. That wasn’t loud enough. What’s the spare of the bayonet to kill, sir? And as I went through that, I started to think, I’m not all that comfortable with this, but I did it.

Jonathan Amarilio:

Sure.

Cary Donham:

But that was where things really started to make me think about what am I doing?

Jonathan Amarilio:

Let’s break that down a little bit. I thought you did a good job describing it in your book, A Wrinkle in the Long Gray Line, but I had trouble understanding it because this is West Point. It turns out soldiers, famous soldiers, US Grant, pretty much every Civil War general you’ve ever heard of Eisenhower, pretty much every World War II general you’ve ever heard of mean purpose of this institution is to turn out army leaders, and being in the military obviously involves killing. So I couldn’t quite understand how it took you, and I don’t mean this as a dig, I’m genuinely asking how it took you three years to realize that the purpose of West Point was to train people to kill.

Cary Donham:

That’s a really good question. When you’re at West Point, your time is just taken up. You don’t have time to think about philosophical questions. Your goal is to make it to the next day, make it to the end of the semester, make it to the end of plebe year. Then you’re at Camp Buckner doing the training and there’s a certain excitement to Camp Buckner, I will say, because you’re firing artillery, you’re driving tanks, you’re going out in the woods on fake patrols.

Jonathan Amarilio:

What 18-year-old kid wouldn’t love to do that, right.

Cary Donham:

You’re learning to repel down a 60 foot cliff, things like that. I mean, it’s very demanding. And then the academics, my sophomore year I had 21 credit hours a semester with advanced physics, advanced chemistry, advanced calculus parades during the week. So there really isn’t time to think about the grander philosophy of what you’re doing there. You’re just trying to make it to the next day. Meanwhile, you’re going to chapel. Chapel was mandatory while I was there. It was mandatory until 1972, the chaplains who were very good, but you would hear things like, well, as a soldier you have no greater responsibility than to take someone’s life. So there was just something that happened during the Bayone that just really made me, it started me thinking, which is not what you’re really encouraged to do while you’re there.

Jonathan Amarilio:

Did you realize that at the time, or are you saying this in retrospect when you were doing that bayonet drill, did you have some sort of revelation in the moment that you recognized as such, or decades later? Are you looking back and identifying that moment as the moment things changed for you?

Cary Donham:

No, at the time, it was the first time I had really felt uncomfortable with something that was going on there, and then things kind of progressed. Later that summer, I learned that one of my high school classmates, and there were only 30 boys in my high school class, had been killed in Vieth. Someone who was one of the poorest kids in the school who used to ride his bicycle around town delivering newspapers had been killed barely a year after he graduated from high school. And then around that time, the word came out about the Meli massacre, and not only that, but the general who was the superintendent at the time had been involved in covering it up. Then that fall of 1969 was when the demonstrations on college campuses started to get bigger. A group of women from Vassar came to West Point on the moratorium day, and I was watching him from my room at the parade when the band played the national anthem. They didn’t stand up, and I was physically shocked at that. It’s like, how could these people not even stand up during the national anthem?

Jonathan Amarilio:

Was it that you were questioning the US’ involvement in Vieth or that you were questioning war generally?

Cary Donham:

I was questioning war generally. It was that what’s one thing that all wars have in common? Young people are sent out to do battles for old men, and it’s still the case today.

Jonathan Amarilio:

I’m trying to nail this down a little bit so I understand it. So you’re having these thoughts, these realizations, and how do you come to identify yourself as someone who’s a conscientious objector rather than just someone who is having abstract ideas about the morality of war?

Cary Donham:

Okay. At the time, I had a girlfriend who ended up becoming my first wife briefly. So there are books that she was having me read Sidha, and that started me thinking along that life is like a river and that everyone is part of it, and how can you go out and consciously destroy part of what you are? You’re part of that river of life, so to speak. Then I got some, well, and it was always the Bible, turn the other cheek, who’s your neighbor? Anyone who you fed or you clothed, they’re your neighbor and love your neighbor as yourself. It doesn’t say love your white neighbor or your American neighbor. I mean, those were what was going through. And then I’ve got a couple of books that had essays by people who had actually professed to being conscientious, objectors or pacifists, and I was reading those books and experiences that people had and I was talking to my parents about it. I have the letters that I quote a lot from in the book that I was riding home and I was having discussions with my parents about war and should I continue at West Point and so on. So that was important. I was having conversations with Diane, my girlfriend. Then eventually I got the name of a draft counselor and I called the draft counselor who put me in touch with some lawyers in New York City who they said would be interested in talking to you.

Jonathan Amarilio:

This was Joan forgetting her name, forgive me,

Cary Donham:

Joan Goldberg.

Jonathan Amarilio:

Thank you.

Cary Donham:

And the other guy was Marvin Kin who was with the ACL U.

Jonathan Amarilio:

So what does that process look like? You declare, you just walk into your commanding officer’s office and say, I’m a conscientious objector. Count me out

Cary Donham:

The process. And I was stunned to learn this. The army had a regulation, army regulation 6 35 dash 20, I don’t think I’ll ever forget that number that laid out how one in the service can apply for conscientious objector status while in the service. So it was a long process Then first to decide that I was going to do this. I think I first contacted the draft counselor in February, and I didn’t actually get a chance to go on leave on a Saturday and meet Joan Goldberg until April 22nd, I think it was of 1970.

Jonathan Amarilio:

When you did this, were you trying to make a larger statement or was this just about you and your own personal beliefs

Cary Donham:

At the time? This was personal. I wasn’t really trying to be a national figure or anything like that. I was just dealing with how I was feeling at the time, and I didn’t want to be put in a position where I would be forced to kill someone.

Jonathan Amarilio:

So the Army rejected your application to be recognized as a conscientious objector, right?

Cary Donham:

Yes, they did. They did. Part of the process is I had to get this typed. It turned out to be pretty long. I mean nine, 10 pages, I had to get reference letters. Diane typed it. She was going to college right next to West Point. So we’d meet on weekends and she’d bring me what she had typed and I’d give her stuff, and we were trying to collect these letters from professors and other people. We knew my pastor back in New Baden, and as it happened, I finished this. It was all ready to go. Pretty much the same day or the day after exams had ended for the spring semester. My class was getting ready to go on a tour of Army bases, and I did not want to go on that tour. So I walked into the officer in charge of our cadet company and handed him the paper and said, sir, I’m applying for discharge from the Army as a conscientious objector.

Jonathan Amarilio:

How did the army react?

Cary Donham:

Major Baker just was kind of bewildered. He just said, well, okay, I guess I’ll have to look at this. The army was definitely not pleased. They had to follow certain rules. So I had to have an interview with a psychiatrist, which West Point arranged who said, yeah, I was sane and that my reasoning was cogent. Then I had to get a statement from a pastor and chaplain, Mike Easterling, who I had been meeting with during this time and talking with a really fabulous pastor, and he’s also in the Wheaton College Hall of Fame as a soccer goaltender. So he wrote a statement supporting me. Then the army had to find an officer who was familiar with the rules about conscientious objectors to do an interview, and that was Colonel Gleason, and we arranged it. It had to be when my lawyer could come up and sit in on the interview, and he didn’t believe me.

It was clear going in that he did not believe that a West Point cadet could possibly have come to the conclusion that he couldn’t kill someone. I mean, I suppose that’s not totally unreasonable, but the Army was not going to have a West Point cadet get discharged as a conscientious objector, especially I think in 1970 and during the Vieth war with Nixon as president. So he had my application. I didn’t, he was asking me questions about it. He would get things wrong. I’d try to correct him, and he wrote that I was wrong when he wrote a report, but I did make a huge mistake in answering a question, something that has stayed with me, and it was also something that I really always remembered when I was preparing witnesses as a lawyer later. He said, when did you something? When did you decide to become a conscientious objector? And I said, oh, when my exams were done. But then he said, but you’ve decided to become a conscientious objector in February. I said, no, that was when I first contacted a draft counselor. But that statement went in that if I only that I wanted to finish the semester, that was my main motivation was to finish the semester, then apply, and that showed that I was not sincere, and that stayed with me through all the appeals and so on. That was

Jonathan Amarilio:

Right, because the whole purpose of this process is to test the interview with the pastor, the psychiatrist, and the lieutenant colonel was to test whether your beliefs were sincerely held. Right. So your credibility is the central issue.

Cary Donham:

Absolutely. And my lawyer recognized immediately that that was bad. So we took a break and we came back in and she asked me a couple of questions and I tried to rehabilitate what I had said, but that made no impression. The way that I know that is that we have Gleason’s recommendation, which she wrote about two days after the interview and set it up the chain of command. My lawyer took notes and she wrote a very detailed letter with her notes of the whole interview. But that was after everything. That Gleason’s recommendation had already gone up and the Army, I got a memo through FOIA that the Army had sent down saying, we don’t want Donna to submit any kind of rebuttal. So you could say that this was fixed.

Jonathan Amarilio:

Which leads us to the court battle, which we will pick up right after this commercial break. We’ll be right back and we’re back. So Cary, we left off with the Army rejecting your status as a conscientious objector calling your credibility into question. So what do you do next? You sue, right?

Cary Donham:

Yeah, that’s what we did. The form of the lawsuit. It was a habeas corpus lawsuit. My lawyer explained, well, habeas corpus means you have the body.

Jonathan Amarilio:

Yeah, produce the body. Yeah, you usually associate it with prisoners.

Cary Donham:

You do. But anyway, that was the form of the lawsuit that Joan filed in the United States District Court for the Southern District of New York.

Jonathan Amarilio:

So how did it go in the district court, the trial court?

Cary Donham:

Well, not well, the judge, it was a good judge. Judge was named Marvin Frankel. He wrote an opinion that said that all that he could do was determine if the army had a basis in fact, for rejecting my application. And he said, if this were up to me in the first instance, I might come out differently. But on the record, the Army had a basis to question Mr. Dunham’s sincerity, and so I have to affirm what the army did and deny the habeas corpus application.

Jonathan Amarilio:

In that sense, it sounds like a pretty standard administrative review case, right?

Cary Donham:

In a sense, yes, it was. Although the issues are considerably different than most administrative reviews. But yeah, the decision is reported, and I include a copy of it as an appendix to my book. It was a well-written decision.

Jonathan Amarilio:

So you take it up on appeal to the Second Circuit, the US Court of Appeals for the Second Circuit. What was your argument there?

Cary Donham:

Well, let me interject because there’s a little more that goes on before then. Sure. In the meantime, I had been ordered to active duty and I was ordered to report to Fort Campbell, Kentucky, and the question was whether do I go? Do I refuse to go? Do I just leave and go to Canada? So I reported and I met the captain who was in charge of the unit that I was going to be temporarily assigned to, and he said, look, I don’t want any trouble here. I know your background. I’ll assign you to work with a chaplain. You don’t have to carry a gun. Can we work together on this? So I called Joan and she said, if that’s what his deal is, then I would take it. The court of appeals will not like it if they find out that you’ve been offered this and in the meantime and you just thumbed your nose at it. And I offered that because I think that was very good advice and I followed it.

The oral argument was set, I want to say beginning of December, and in the meantime, I had gotten married before I was went to Fort Campbell, and I got leave for three days because I also had orders then to report from Fort Campbell to Fort Saam Houston in Texas to undergo medic training, which I thought was ironic because they said I wasn’t a conscientious objector, but then they were going to make me a medic, which was kind of like one of the options for conscientious objectors. But meanwhile, so I went to New York and was in the Courtroom when Joan argued the case, the main argument I believe, and there was a couple, was that the rules said that the hearing officer needed to be knowledgeable about conscientious objector rules and so on, and the argument was he wasn’t at all familiar. He thought that conscientious objector status had to be based on religious grounds,

Jonathan Amarilio:

Which wasn’t the case at that point. It had been previously, but was no longer at that point in time.

Cary Donham:

Many years ago, his questions were biased. I mean, they weren’t intended to learn. They were intended to put me in a corner and had the hearing officer come down on my side. It would’ve been very difficult for the army to have rejected my application after the psychiatrist and the chaplain also said that I was sincere. So what I remember was at the end of the oral argument, Joan said, Mr. Donna’s been ordered to go to Fort Saam Houston. In the next couple of days, they ask that your honors stay that order. I thought it was just a shot in the dark, but from the bench, they granted that

Jonathan Amarilio:

From the bench.

Cary Donham:

They granted that from the bench.

Jonathan Amarilio:

That never happens in appeals, that never happens. That’s not how it works. So that’s pretty extraordinary in and of itself.

Cary Donham:

Yeah. So I was on leave again, back living in New York, worked at a gimbal’s department store over the Christmas holiday. I mean, I was really basically in limbo at this point. Then first week of January, this is also extraordinary. They issued the ruling that reversed the army and remanded the matter to the army to hold another hearing.

Jonathan Amarilio:

Right? Applying the right standards,

Cary Donham:

Applying the right standards with a hearing officer who is knowledgeable. Imagine getting a written opinion from the seventh Circuit in 30 days or so from oral argument.

Jonathan Amarilio:

No comment. No comment. I still have to argue in front of them.

Cary Donham:

Yeah, I’ve argued in front of them and no, that’s not my experience.

Jonathan Amarilio:

So I know we touched on this before, but the thing that really stands out to me is like we said, these circumstances were extraordinary, but the arguments made here and the issues that were before the district court and then the second circuit, these are very run of the mill administrative review law questions. Were the proper standards applied, if not, then remanded for a new hearing in front of a different hearing officer. I mean, it’s all sort of bread and butter administrative review law, isn’t it?

Cary Donham:

Yeah, it really is when you drill down just to the legal issues.

Jonathan Amarilio:

Right. So it went back for a new hearing and you won.

Cary Donham:

Yeah, well, even that was complicated. First I had resigned from West Point and now I’m on leave from the Army and I get a job as a gopher for a law firm in New York that’s a does Broadway productions great job at the time. Meanwhile, the army is writing letters. The general Counsel of the Army wrote a letter to Jon Mitchell who was the Attorney General at the time, telling him, why aren’t we appealing this to the Supreme Court and why is Donna still on leave? He should be like any other person. He should be on some kind of restricted duty,

Jonathan Amarilio:

Kind of flattering to have that level of attention.

Cary Donham:

Well, it was interesting to find that out through my freedom of information request. So it wasn’t until May that the Army got around to ordering a new hearing and the hearing officer this time, and it was at a place called, I think Fort Hamilton in Brooklyn, and it couldn’t have been more different than night and day. It was a major Don Moore, and we had the hearing. It was straightforward and I never heard what he said, and I did in August get a message to report to Fort Dixon, New Jersey to be discharged, and it wasn’t a conscientious objector discharge, but it was an honorable discharge charge. So one day, much, much later, I get a phone call and it is from Don Moore, and I learned, and I’ve had some communications with him that he had written a recommendation that I be discharged as a co.

He was ordered to change it. He said, that’s an illegal order. I’m not going to change it. He said, well, the highest office in the land is interested in your changing that. Well, I’m not going to do it. It ruined his career. He ended up resigning from the Army and joined the Army Reserve. He had envelopes that were steamed open, and I’ve never found that his recommendation, the Army never produced it in the FOIA responses, which that’s one of the more interesting things about my whole story, I think is how it not only affected me, but it affected the career of really a fine officer who was just doing his job.

Jonathan Amarilio:

If we can, I’d like to fast forward a bit just because we’re running low on time, Cary, I know there’s a lot more there to explore and readers can certainly do it in the book, which I’d encourage ’em to do, but did this whole experience make you want to become a lawyer? I mean, this was every level of the law here

Cary Donham:

Eventually. Yes. It took me a while to get there. I’ve been interested in the law. I mean, while I was at West Point, and it did show me that there is some power to the law for good and that things can be achieved through Litigation. Now, it took me another 14 years before I started law school, that experience and reading practically every Perry Mason book, those were my big influences.

Jonathan Amarilio:

I’ve heard a few lawyers of your generation say that about Perry Mason. Let me ask you one last question before we go to Stranger and Legal Fiction. Looking back all these decades later, would you have done this any differently?

Cary Donham:

No.

Jonathan Amarilio:

You still would’ve gone to West Point?

Cary Donham:

Yeah, I would’ve gone to West Point. I mean, west Point was at the time, it was like if you’re competitive and you’re from a small town and you have a chance to do something that no one in your small town has done, yeah, I would’ve done it in the circumstances knowing that it was a chance to become an officer, follow where my dad had done, who knew anything about Vieth, about what was really going on in Vieth in 1967. So yes, I would’ve done it, and I also would’ve applied for discharge from the Army as a co. I wouldn’t done any different.

Jonathan Amarilio:

We’ll be right back with Stranger in legal fiction and we’re back with Stranger and Legal fiction. Our audience knows the rules. They’re pretty simple. I’ve done some research, found a real law that’s out there, but probably shouldn’t be real. I’ve made another one up and I’m going to quiz Cary to see if he can distinguish Strange fact from fiction. Cary, you ready to play?

Cary Donham:

I am.

Jonathan Amarilio:

Alright, so I’m going to give you two options. Tell me which one’s real and which one’s fake. Option number one. In 1910, Congress passed the So-called Hippo Bill authorizing the mass importation of hippopotamus hip, say Hippopotamuses to Louisiana to help both clear land of unwanted flora and provide a ready source of local affordable meat. Option number one, importing hippos to Louisiana. Option two in Alabama, it is a misdemeanor to appear in a public place dressed as a member of the clergy if you are in fact not an ordained member of the clergy, which is real.

Cary Donham:

I’m going to go with the hippos.

Jonathan Amarilio:

Why?

Cary Donham:

Something tells me that I might have read something about that and I don’t even know. That’s just my gut. I know Louisiana’s got a lot of swamps to drain and anyway, that’s my guess.

Jonathan Amarilio:

Fair enough. I’d say you were close. The Alabama law is the real one. Shout out to my dad, Joseph Amarillio for sending me the Hippo Law. That was a house bill backed by none other than Teddy Roosevelt, but it never actually became law. It didn’t pass. The Alabama law is real. Alabama criminal code section 13, a 14 four for anyone who wants to look it up. And if you dress as I suppose this is a problem around Halloween time, but if you dress up as a priest, you could be fined up to $500 and can find in a county jail for a time not to exceed one year. So be careful around Halloween. Folks,

Cary, I want to thank you for joining us today. This was a interesting conversation. I really enjoyed it, and I wish you the best of luck with the book, which again is a wrinkle in the long gray line when conscious and convention collided available from all fine booksellers. I also want to thank our executive producer, Jen Byrne, Adam Lockwood on Sound, and everyone at the Legal Talk Network Family. Remember, you can follow us and send us comments, questions, episode ideas, or just troll us on Facebook, Instagram, and Twitter at cba, @theBar, all one word. You can also email us at [email protected]. Please also rate and leave us your feedback on Apple Podcast, Google Play, Stitcher, Spotify, audible, or wherever you download your podcast at, helps us get the word out. Until next time, for everyone here at the CBA, thank you for joining us and we’ll see you soon @theBar.

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