96 AGGRESSIVE WAR

sion is at its very beginning,” Secretary of State Dean Rusk told the American Society of International Law. “Surely we have learned over the past three decades that the acceptance of aggression leads only to a sure catastrophe. Surely we have learned that the aggressor must face the consequences of his action . . .”¹

On what does this pro-United States invocation of Nuremberg and its principles rest? Essentially, it is a three-step proposition: (1) that North Vietnam attacked South Vietnam in violation of Article 2 of the United Nations Charter, (2) that South Vietnam was entitled to use force to repel the unlawful attack, and (3) that the United States is justified in joining South Vietnam in “collective defense” under Article 51 of the Charter.

But among those opposed to our policy in Vietnam, Nuremberg is cited even more frequently. “It may appear ironic,” declares the National Lawyers Guild, “that the first serious effort to revitalize Nuremberg into a binding legal and moral precedent has been undertaken by citizens of this country who assert that their own government has engaged in an illegal war in Vietnam in violation of international law and morality.” And again, in the words of Eric Norden: “Our actions in Vietnam fall within the prohibited classifications of warfare set down at Nuremberg . . . the United States is clearly guilty of ‘War Crimes,’ ‘Crimes against Peace’ and ‘Crimes against Humanity,’ crimes for which the top German leaders were either imprisoned or executed.”²

So far as it concerns aggressive warfare, the case

AGGRESSIVE WAR 97

for these stark accusations is based on the conclu-
sions that both South Vietnam and the United
States violated the Geneva Declaration of 1954 by
hostile acts against the North, unlawful rearma-
ment, and refusal to carry out the 1956 national
elections provided for in the Declaration, and that
the United States likewise violated the United Na-
tions Charter by bombing North Vietnam.

Eminently respectable and learned voices are
raised on both sides of the debate. By what stand-
ards may it be judged? Critics of the Nuremberg
condemnation of "aggressive war" often complain
that neither the London Charter nor the tribunals'
opinions embodied a definition of the concept. Is
definition feasible, and would it help in identifying
the aggressor in Vietnam? At the conferences during
which the London Charter was formulated, the
United States proffered two proposed definitions.
But neither was accepted, and the Russian dele-
gate, in words reminiscent of the man who doesn't
know much about music but knows what he likes,
declared: "When people speak about aggression,
they know what that means, but, when they come
to define it, they come up against difficulties which
as yet it has not been possible to overcome."³ And
in 1950, the Reporter to the International Law Com-
mission of the United Nations concluded, even
more bluntly, that any attempt to define aggression
"would prove to be a pure waste of time."⁴

That may be an overstatement, but certainly ef-
forts at a definite formulation have not yet been
successful. However, this is very commonly the
case with general concepts, many of which are in-

98 AGGRESSIVE WAR

dispensable tools of law and philosophy. The Con-
stitution of the United States contains numerous
crucial phrases that equally defy definition:
"Due process of law" and "unreasonable searches
and seizures" come readily to mind. They are also
to be found in common criminal and civil law—for
example "negligence" or "reasonable doubt." The
meaning of such words and phrases can be illumi-
nated by descriptive comments, but invariably
these also employ expressions of imprecise or im-
ponderable content.

The lack of a satisfactory definition of "aggressive war" therefore, should not be taken as a sufficient argument against its use as a description of unlawful international conduct. In fact, as the discussion and application of the standard since it came into common parlance reveals, it is not significantly different from the tests for the lawful use of defensive force in our domestic criminal law. As we have already seen, the parallelism is of long standing. There is remarkable similarity between the criteria stated by Suarez and Grotius for distinguishing the just from the unjust war, and the provision of the New York Penal Law specifying the circumstances under which force may rightfully be used: to defend one's self, one's property or to assist other persons engaged in defending themselves or their property.

Over the course of time, the law has developed
reasonably satisfactory statutory and judicial for-
mulations of this right of self-defense. But there are
no self-operating definitions. The policeman who
comes upon a fracas may find it difficult or impos-

AGGRESSIVE WAR 99

sible to decide whether Cohen or Kelly struck the
first blow, and the doubts may be equally impos-
sible to dispel when the matter comes into court.
And if run-of-the-mill criminal cases commonly
present such difficulties, it is hardly surprising to
encounter them in international conflicts. The ques-
tion of initial responsibility, which is the essence of
"aggression," may be vexingly complicated, as the
Arab-Israeli hostilities abundantly demonstrate. And
while there are many on both sides of the Vietnam
dispute who declare that the original blamelessness
or blameworthiness of the United States is readily
demonstrable, the depth of disagreement among
men of integrity and intelligence suggests that at
least the issues are far from simple.

In practical terms, what difference does it make
whether the American involvement in Vietnam is
legal or illegal under the Nuremberg principles?
Today there is no longer an international tribunal
competent to render judgment. But the issue is be-
ing dramatically projected in a variety of domestic
circumstances. May a soldier under orders to pro-
ceed to Vietnam refuse on the ground that he
should not participate in an illegal war? May a draft
registrant refuse induction on that basis? May tax-
payers similarly persuaded of the war's illegality
withhold a symbolic or proportionate part of their
payments?

These and comparable questions, calling for a de-
termination of the legality of our Government's ac-
tion in Vietnam, are being pressed before our do-
mestic courts in a host of cases. Should the courts
undertake to make such a determination? A strong

100 AGGRESSIVE WAR

affirmative opinion has been voiced by Richard A. Falk, Professor of International Law at Princeton:

> . . . the reassertion of an active judicial role in this area would appear to be a creative contribution to the doctrine of separation of powers in the war-peace context. . . . In addition, those who seek access to the courts in order to test the legality of the war—for instance, by refusing to pay all or part of their income taxes— are entitled to a substantive determination of the issue . . . it is important that judges become persuaded of their competence and responsibility to restrain the execution of government policy by either executive or legislative institutions if such policy is found to exceed the boundaries set by international law.⁶

Thus far the Supreme Court has not heeded Professor Falk's call to battle, but the issue rings loudly in the lower court reports and law reviews. Should the Supreme Court engage itself with this issue? And if so, what would be the principles and problems attending such an adjudication?

We may best begin by taking a brief look at the merits of the aggression issue, not in order to answer it, but for an understanding of the range and complexity of its components. An answer would involve the interpretation of numerous treaties and other international documents, including the United Nations Charter, the Geneva Declaration of July 21, 1954, the reports of the International Control Commission established under the Geneva agree-

AGGRESSIVE WAR 101

ment, and the Southeast Asia Collective Defense Treaty (SEATO). It would involve the examination of hotly controverted evidentiary questions, such as when the infiltration of North Vietnamese guerrillas into South Vietnam began, and whether American destroyers were in fact attacked, or reasonably believed to have been attacked, by North Vietnamese torpedo boats in the Tonkin Gulf in the summer of 1964. It would involve scrutiny of the information available to, and the intentions of, the President of the United States and the military and civilian officials who helped him to shape and execute our policies and operations in Vietnam.

One example may serve to demonstrate the complexity of these issues. At Geneva in 1954 the dividing line between North and South Vietnam was drawn at the 17th Parallel. Indisputably, the ground fighting has all taken place in South Vietnam; it is the North Vietnamese who have joined the Vietcong "south of the border" and are seeking to subvert the Government of South Vietnam. On its face this would seem strong evidence that it is the North Vietnamese who are using war "as an instrument of national policy" (to echo the Kellogg-Briand pact language) and are the aggressors. Indeed Professor John Norton Moore, one of the stoutest academic supporters of American policy, makes much of this very point: "As both Korea and Vietnam demonstrate, one of the greatest threats to world order today is external intervention seeking coercive change across a boundary separating the de facto halves of a cold-war divided country. This is a major reason why it is crucial that international

102 AGGRESSIVE WAR

legal scholars clearly condemn the strategy of Hanoi in seeking coercive change across such a cold-war dividing line.”⁷

But the matter is not at all that simple. The Geneva agreement of 1954 did not purport to establish two nations, but two “zones,” and explicitly declared that “the military demarcation line is provisional and should not in any way be interpreted as constituting a political or territorial boundary.” It was the basis for a cease-fire, and the purpose of the zones was specified as “regrouping.” The agreement further provided for “free” nationwide elections, to be held in 1956, as the basis for a government based on “the principles of independence, unity and territorial integrity.” But South Vietnam, with the support of the United States (which had not signed the Geneva agreement), declined to proceed with the elections on the ground that conditions in North Vietnam were not “free”; consequently the two zones took on the attributes of independent states, with South Vietnam in alliance with the United States. Many international lawyers support the North Vietnamese contention that the Geneva agreements were violated by the refusal to hold elections and unify the country, and that the demarcation line is not properly to be regarded as an international boundary. Consequently, it is said, the North Vietnamese were justified in aiding the Vietcong in South Vietnam, who are seeking to establish a government favorable to unification in line with the purpose of the Geneva agreement.

An American court undertaking to pass judgment on the legality of our Vietnam actions would have

AGGRESSIVE WAR 103

to review these and numerous other questions of
comparable difficulty and complexity with little
guidance from the Nuremberg and Tokyo judg-
ments. Whatever might be said about the long-range
causes of the Second World War, there was little
question about who attacked whom, and the issue
of aggression was comparatively easy to adjudicate.

There are also the vexed questions of intent and
motive. At Nuremberg and Tokyo individuals were
on trial, and it was possible to declare the wars to
be aggressive because of their proven intentions
and declarations. But if the issue arises not in a
trial of persons accused of crimes against peace, but
as a defense in a draft or tax case, it is the "govern-
ment's" intentions that are called in question. The
"government" is not an individual and cannot be
said to have intentions of its own, and it might well
transpire that the intentions and motives of govern-
ment leaders were very diverse. Some might in
good faith believe, in line with the arguments of
Dean Rusk and Thurman Arnold, that the United
Nations Charter and the SEATO treaty justified
or even required intervention to protect South
Vietnam from aggression. Others might talk this
language only to conceal the intention to exploit
South Vietnam as an American military base to
"contain" Communism, or to dominate Southeast
Asia and its enormous natural resources. In terms
of individual guilt of crimes against peace, the ques-
tion of intent might be decisive. But where only
the "government" is the focus of inquiry, it might
be quite impossible to determine the intent with
which a particular decision was taken.

104 AGGRESSIVE WAR

In this connection, it may be remarked that the policy-making machinery of the United States resembles much more that of the Japanese as it emerged at the Tokyo trial, than that of Nazi Germany. "L'Etat, c'est moi," said Louis XIV, and Adolf Hitler could truthfully have echoed his words. Hitler's intention *was* the intention of the German Government. But there was no comparable figure in Tokyo, nor has there been in Washington. The President is a focus, but around him there are diverse and shifting groups and combinations of powerful military and civilian leaders, and the Congress likewise has its part to play. Declarations of intent in official documents are designed to be exculpatory, and are often less than candid, to say the least.

In summary, the nature of the issues that would have to be explored in assessing the legality, under the Nuremberg principles, of American participation in the Vietnamese war would present enormous difficulties to any court, and especially to a domestic court of one of the belligerents, convened during the course of hostilities. This is not a conclusive argument against making the attempt, but it is certainly a factor to be weighed in deciding whether or not this is a fit subject for judicial decision.

There is another question concerning the legality of our Vietnam involvement that is not a matter of Nuremberg or other international law principles, but is closely interlocked with them, both legally and politically. This other issue involves the respective powers of the Congress and the President in the fields of foreign relations and war-making. The ten-

AGGRESSIVE WAR 105

sion between the two arises from the constitutional provisions that give Congress the power "to declare War," to "raise and support Armies" and "provide and maintain a Navy," and to "make Rules for the Government and Regulation of the land and naval Forces," while specifying also that the President "shall be Commander-in-Chief of the Army and Navy of the United States." Essentially, the contention is that the President has no authority to commit the armed forces to battle in Vietnam without Congressional authority, that no such authority has been given, and that the courts should, if properly called upon, declare the President's actions in Vietnam unconstitutional and subject to judicial restraint.

The constitutional provisions were originally intended to give Congress the principal power of decision as between war and peace. Chief Justice John Marshall, indeed, went so far as to say that "the whole powers of war" were "vested in Congress."⁸ The Founding Fathers, however, were well aware that the President must have authority to "repel sudden attacks," as Oliver Ellsworth put it, and the course of events soon led to a very broad interpretation of that phrase. During the Barbary Wars President Jefferson took a very cautious view of his powers, which was hotly disputed by Alexander Hamilton. The latter conceded that it was "the peculiar province of Congress, *when the nation is at peace*, to change that state into a state of war . . . in other words, it belongs to Congress only *to go to War*." However, "when a foreign nation declares, or openly and avowedly makes war

106 AGGRESSIVE WAR

upon the United States, they are then by the very
fact already at war, and any declaration on the part
of Congress is nugatory; it is at least unnecessary."

Translated into modern terminology, Hamilton's
distinction is drawn between "aggressive" and "de-
fensive" wars. He wrote at a time when Grotian
notions had gone out of fashion, and war was, in
Lieber's phrase, "the means to obtain great ends of
state." But the consequence of Hamilton's view
under the United Nations Charter and the Nurem-
berg principles is indeed curious. If no Congres-
sional authority is needed for defensive wars, and
if aggressive wars are outlawed, then there is no
room left for necessary and valid Congressional
declarations of war, except perhaps in going to the
aid of another country that has been wrongfully
attacked.

In any event, Hamilton's expansionist approach
to Presidential war powers prevailed, and today is
conceived far more broadly than even he would
have thought possible. In a military sense the world
has diminished in size, and old distinctions between
"direct attack" and "indirect threat" are blurred.
Since the Second World War, all five Presidents—
Truman in Korea, Eisenhower in Lebanon, Ken-
edy in Cuba, Johnson in Vietnam and the Domini-
can Republic, and Nixon in Cambodia—have taken
military action in foreign parts on the basis of their
authority as Commander-in-Chief, without Con-
gressional sanction. A 1966 State Department public
statement on "The Legality of United States Par-
ticipation in the Defense of Viet-Nam" declares
that the President, as Commander-in-Chief, has "the

AGGRESSIVE WAR 107

power to deploy American forces abroad and com-
mit them to military operations when the President
deems such action necessary to maintain the se-
curity and defense of the United States."⁹

That, of course, is a 180-degree swing from John
Marshall's view of the matter, and a virtual erasure
of the Congressional role. The tortured course of
the Vietnam war both at home and abroad, capped
by President Nixon's Cambodian adventure, has
aroused strong feeling in Congress that the execu-
tive power has been pushed much too far. During
the Korean war President Truman, to avert a strike,
seized the nation's steel mills and justified the act
under his constitutional powers, without Congres-
sional authority. The Supreme Court spanked him
sharply, ruling that the President's powers as Com-
mander-in-Chief did not support the seizure.¹⁰
There has never been a comparable judicial test of
the President's power to commit troops to foreign
wars, but if the courts should entertain such a case,
it is doubtful that such sweeping claims of power
as the State Department has made in connection
with Vietnam would be upheld.

A much stronger case, however, can be made for
the proposition that Congress *has* authorized our
military operations in Vietnam, even though there
has been no formal declaration of war. In the very
same case in which he attributed "the whole powers
of war" to Congress, Marshall recognized that by a
series of statutes Congress had authorized "lim-
ited hostilities" against France, in the so-called "un-
declared war" of 1798-1800.

There are a number of Congressional actions that

(LO)

108 AGGRESSIVE WAR

might be cited to the same effect in connection
with the Vietnam war. First and foremost is the
Southeast Asia Resolution (better known as the
Tonkin Resolution), taken in conjunction with the
SEATO treaty. The latter provides that each party
to it* "recognizes that aggression by means of
armed attack . . . against any of the parties or
against any state or territory which the parties by
unanimous consent may hereafter designate, would
endanger its own peace and safety, and agrees that
it will in that event act to meet the common danger
in accordance with its constitutional processes." A
protocol to the treaty designated Vietnam (also
Cambodia and Laos) as within the protection of
the quoted clause. The Tonkin Resolution, enacted
in August, 1964, approved the President's "deter-
mination . . . to take all necessary measures to re-
pel any armed attack against the forces of the
United States and to prevent further aggression,"
and declared that "the United States is . . . pre-
pared, as the President determines, to take all nec-
essary steps, including the use of armed force, to
assist any member or protocol state of the South-
east Asia Collective Defense Treaty requesting as-
sistance in defense of its freedom."

Even those who most sharply dispute the con-
stitutional validity of the Vietnam war concede
that this language pretty well covers subsequent
military actions in Vietnam. But the actual intent
and legitimate effect of the Tonkin Resolution are

* The parties to the Southeast Asia Collective Defense Treaty, signed Sept. 8, 1954 at Manila, are Australia, France, New Zealand, Pakistan, Philippines, Thailand, the United Kingdom and the United States.

AGGRESSIVE WAR 109

hotly controversial questions today, and its original Congressional sponsors stoutly deny that it was intended to authorize warfare limited only by the President's discretion. However, a few months later, and after the bombing of North Vietnam had begun, Congress approved military appropriations that the Administration explicitly labeled for support of the Vietnam operations. Again and again since, Congress has appropriated the funds requested by the executive for this purpose, and there have been other actions that seemingly conveyed approval of the Vietnam venture, such as the 1965 penalties for the destruction of draft cards, and the 1967 extension of the Selective Service Act.

But if all this makes a strong case it is still a debatable one, and there remains the question whether the courts should undertake to settle it. There is no doubt but that these issues of Presidential power and legislative intent are much much more familiar and congenial to the judicial process than those involving the Nuremberg principles. Furthermore, they are issues arising under the Constitution, the meaning and application of which are normally matters for the courts. But there is serious question whether these particular constitutional issues—involving war, foreign affairs, and the respective powers of the executive and legislative branches—do not fall within a category that the courts have declined to adjudicate, under what lawyers call the “political question doctrine.”

An early and leading case illustrating this doctrine occurred in 1849, following a time of chaos in Rhode Island politics when there were two rival

110 AGGRESSIVE WAR

state governments. The Constitution provides that "The United States shall guarantee to every State in this Union a Republican form of Government," and it was asserted that one of the two contenders did not meet this requirement and was therefore illegitimate. But the Supreme Court declined to decide the point, on the ground that the question was, as Chief Justice Taney put it, "political in its nature," and thus committed entirely to Congress for decision.¹¹

The political question doctrine is itself controversial, and constitutional lawyers do not agree on its nature and purpose. For Herbert Wechsler it is itself a matter of constitutional interpretation; it is finding in the words of the Constitution a direction that a particular provision, or area of governmental action, is removed from the judicial purview and committed exclusively to the legislative or executive branches. For Alexander Bickel, on the other hand, the doctrine is one of judicial discretion, to enable the Supreme Court "to maintain itself in the tension between principle and expediency."¹² Adherents of the Bickel view lay stress on the inherent political weakness of the Federal judiciary, dependent as it is on Congress for organization, jurisdiction and funding, and on the executive for appointments and enforcement of its orders. The courts' survival and ability to make their decisions "stick" depend heavily on public respect for and acceptance of their decisions, and there are occasions when political discretion suggests that the courts do well to stay clear of involvement in divisive and potentially explosive public controversies.

AGGRESSIVE WAR 111

As a theory of constitutional interpretation the Wechsler view is much the more satisfactory, but it may well be that the Bickel approach more accurately reflects the workings of the judges' minds. Certainly there has been ebb and flow in the political question doctrine's application, depending on the temper of the Supreme Court and its disposition to venture into new areas in a spirit of "activism." For many years the late Justice Felix Frankfurter was the leading spokesman of the school of judicial abstention or, as its opponents would call it, abdication. In 1962 his views suffered a sharp setback when the Court, after numerous refusals, finally decided to review the constitutional validity of the structuring of election districts.¹³ Many lawyers regard that case as signalling the decline of the political question doctrine, and a greater willingness on the Court's part to step into the breach.

Foreign relations and war-making, however, have long been regarded by the Supreme Court as beyond the judicial ken. "The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—'the political'—Departments of Government," wrote Justice Clarke in 1918, "and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision." More recently the late Justice Jackson, in a case where Supreme Court review of an American war crimes trial was sought, wrote: "Certainly it is not the function of the Judiciary to entertain private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the Commander-in-

112 AGGRESSIVE WAR

Chief in sending our armed forces abroad or to any
particular region."¹⁴

Today the indications are that these views still
prevail with a majority of the Supreme Court. In
1966, three Army privates ordered to Vietnam sued
to restrain the Army from shipping them out, on the
ground that there had been no constitutionally suf-
ficient authorization for American military activity
in Vietnam. The lower Federal courts dismissed the
suit, and the Supreme Court declined to review that
decision by the procedure known as "denial of
certiorari."¹⁵ This is a wholly discretionary process
by which the Court indicates only that it does not
wish to hear a case, without passing on any of the
issues it presents. Justices Douglas and Stewart (an
odd couple) dissented, saying that the Court should
have heard argument, but did not indicate whether
they thought the Court should decide the issue of
the war's "validity" or, if so, how it should be set-
tled.

This is inconclusive, but certainly suggests no
eagerness on the part of the Court to grasp the
nettle by telling Congress what it has or has not
done, or the President whether he is acting within
his constitutional powers. Of course, if a lower
Federal court should decide that our Vietnam in-
volvement is unconstitutional, and that therefore
the objecting registrant cannot be inducted or the
soldier sent to war, the Court might well feel
obliged to review the case, rather than let so porten-
tous a ruling stand. But so far that has not hap-
pened; the lower courts have held the political
doctrine applicable, on the basis of reasons such as

AGGRESSIVE WAR 113

those relied on by Judge Charles Wyzanski of the
Federal District bench in Massachusetts:

From the foregoing this Court concludes that
the distinction between a declaration of war
and a cooperative action by the legislative and
executive with respect to military activities in
foreign countries is the very essence of what is
meant by a political question. It involves just
the sort of evidence, policy considerations, and
constitutional principles which elude the nor-
mal processes of the judiciary and which are
far more suitable for determination by coordi-
nate branches of the government. It is not an
act of abdication when a court says that politi-
cal questions of this sort are not within its juris-
diction. It is a recognition that the tools with
which a court can work, the data which it can
fairly appraise, the conclusions which it can
reach as a basis for entering judgments, have
limits.¹⁶

As matters stand today, it appears unlikely that
the Supreme Court will confront the issue. Still
these arguments continue to be pressed in a multi-
tude of lower Federal court cases. Whether or not
this is a fruitful technique for resolution of the
Vietnam crisis is a question to which I will shortly
recur.

Issues such as those just discussed can be deter-
mined largely within the framework of United
States domestic law, but of course that is not true
of the so-called "Nuremberg defense," which rests

114 AGGRESSIVE WAR

on over-riding principles of international law and treaties. In another recent case, wherein a draft registrant was convicted of failing to report for induction, the defendant unsuccessfully appealed on the ground that the war is illegal under the London Charter establishing the Nuremberg Tribunal. In this case, too, the Supreme Court declined to review the case, with Justice Douglas the lone dissenter.¹⁷ Supposing that the Court had taken the case, what “law” could it have looked to as the basis of decision?

On this point, the Supreme Court and all other American courts are governed by the so-called “supremacy clause” in Article VI of the Constitution, which provides:

> This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or laws of any State to the Contrary notwithstanding.

For present purposes, the most significant thing about this clause is that international law, except as embodied in treaties to which we are party, is not part of the “supreme law of the land.” The second and almost equally important point is that treaties are not accorded any higher dignity than the “laws”—that is, the statutes enacted by Congress. Treaties and statutes stand on an equal foot-

AGGRESSIVE WAR 115

ing, and it has long been settled that in the event
of conflict or inconsistency between a treaty and a
statute, whichever is of later date prevails.¹⁸

The consequences of all this, as applied to a
Supreme Court adjudication of a challenge to the
Vietnam operations on "Nuremberg" grounds, is
that the Court would have no authority, under the
supremacy clause, to rely on doctrines of "just and
unjust wars" or any other general international law
principles. The Court could look only to treaties,
and since the London Charter was never consented
to by the Senate, it may not be a "treaty" within
the meaning of the supremacy clause, though that is
far from clear. Opponents of the war would have
to place primary reliance on Article 2 of the United
Nations Charter, under which the members agree
to "refrain in their international relations from the
threat or use of force against the territorial integrity
or political independence of any state, or in any
other manner inconsistent with the purposes of the
United Nations." Supporters of our Vietnam policy
would reply by reference to Article 51 of the Char-
ter, which preserves "the inherent right of individ-
ual or collective self-defense if an armed attack
occurs against a Member of the United Nations."

However, interpretation of the United Nations
Charter would not end the matter, because of the
parity of treaties and statutes. And here the issue
would closely parallel the one just discussed con-
cerning the constitutional basis of our Vietnam op-
erations, for if Congress, by the Tonkin Resolution,
appropriations, Selective Service legislation, or in
any other statutory way has authorized those activi-

["116 AGGRESSIVE WAR", "ties, these later statutory enactments would prevail\nin the event of any conflict with the United Nations\nor London Charters.", "The Constitution, of course, is superior to both\nstatutes and treaties. It is conceivable that, in some\nunlikely contexts, an argument could be made that\nthe Fifth Amendment, in barring Congress from\nenacting any statute that deprives any \"person\" of\n\"life, liberty, or property, without due process of\nlaw,\" might be held to embody basic elements of\nnatural law. If in a fit of frenzy Congress should\nauthorize the torture and execution of all prisoners\nof war, a constitutional barrier might thus be dis-\ncovered. But it is quite beyond the bounds of pos-\nsibility that the Court would use so blunt a tool to\nunravel the tangle of treaties, agreements and reso-\nlutions that are involved in determining the aggres-\nsive or defensive character of our Vietnam in-\nvolvement.", "In short, under the limitations of the supremacy\nclause, the Supreme Court *is not authorized to*
render judgment on the validity of our participation\nin the Vietnam war under the Nuremberg prin-\nciples or international law in general.", "The direction in which the foregoing legal factors\nall point, I believe, is that the courts are not a suit-\nable or sufficient forum for the settlement of our\nVietnam problem. And apart from purely legal con-\nsiderations, it seems to me that there are powerful\npolitical and practical considerations that lead to\nthe same conclusion.", "Contemplate, for example, the spectacle of the\nSupreme Court reviewing and pronouncing judg-"]

AGGRESSIVE WAR 117

ment on the question whether Congress has au-
thorized our Vietnam operations, with Congress
sitting at hardly a stone's throw and able to speak
for itself. It is true that the Court made just such
an adjudication in the steel seizure case, but there
the arguments for finding Congressional approval
were insubstantial compared to those that can be
marshaled in connection with Vietnam. The steel
seizure was a single Presidential act, important
but paling into insignificance in comparison with
the third costliest war in the nation's history, in the
conduct of which the Congress has participated in
many ways.

Of course, the fact that Congress has not said
"no" is not legally significant, since the question
is whether the war can be constitutionally waged
if Congress has not said "yes." But politically, Con-
gress' failure to act decisively to bring the war to
an end is exceedingly significant in assessing the
consequences of an adverse decision by the Court.
As John Norton Moore remarks, "It is difficult for
a President to pursue sustained military actions
without the active support of a substantial segment
of Congress and the American people." Through its
power of the purse, its power to make rules for the
regulation of the armed forces and if necessary its
impeachment powers, a Congress determined to
bring the Vietnam war to the quickest possible end
can find ways and means to do so. After five years
of bloody and costly war sustained by Congres-
sional appropriations, if the President's course is to
be checked by another branch of the Government,
it is the Congress and not the Court that can and
should be the checking agent.

118 AGGRESSIVE WAR

Quite apart from the limitations of the supremacy
clause, the objections to a Court decision based on
the anti-aggression provisions of the Nuremberg
or United Nations Charters are even more com-
pelling. The political strain on the Court would be
much greater, for while a decision on the consti-
tutional basis of the war would appear as a sort of
judicial arbitration between the two other branches'
respective powers, a decision based on the Nurem-
berg principles would be regarded as putting inter-
national law over Constitution, Congress and Presi-
dent combined.

Furthermore, the evidentiary problems would be
well-nigh insuperable. It is hardly to be thought
that the United States and South Vietnamese gov-
ernments would open up their secret diplomatic and
military document files for inspection by the liti-
gants. At Nuremberg and Tokyo alike, military
conquest had accomplished just that, and especially
at Nuremberg the volume and candor of the docu-
ments, as well as Hitler's focal role, greatly sim-
plified the issue of intent.

But no such aids are available now. "An interna-
tional lawyer writing about an ongoing war cannot
hope to reach clear conclusions about all the legal
issues involved," writes Richard Falk: "It is virtually
impossible to unravel conflicting facts underlying
conflicting legal claims."¹⁹ An American court, be
it the Supreme Court or a lesser tribunal, would
find the path to "clear conclusions" equally ob-
structed. Total military victories such as those that
ended the Second World War are comparatively
rare in modern history, and it is difficult to envisage
other circumstances that would unlock the secret

AGGRESSIVE WAR 119

files. In the nuclear age, with the three greatest powers involved in the Vietnam war, total victory would probably leave few with any stomach for war crimes trials, or indeed any stomachs at all.

In some draft resistance cases, the defendants have pressed the "Nuremberg defense" by contending that, if the Vietnam war is in fact aggressive, they will be liable to prosecution as war criminals if they engage in it. Professor Falk has given this argument a qualified blessing, writing that "the wider logic of Nuremberg extends to embrace all those who, knowingly at any rate, participate in a war they have reason to believe violates the restraints of international law."²⁰

Wherever the "wider logic" might lead, the Nuremberg judgments, as we have seen, have no such wide embrace. Those convicted at both Nuremberg and Tokyo of "crimes against peace" were all part of the inner circles of leadership, and the Nuremberg acquittals of generals and industrialists cut directly against Professor Falk's argument. Furthermore, there is much ambiguity in his phrase "reason to believe." No doubt there are today millions of Americans who, on the basis of generally available information, would claim a "reasonable belief" that we are "in the wrong" in Vietnam and, if educated in the terminology, would label it "aggressive." But there are more millions who think otherwise, and the issue between these disagreeing millions cannot rationally be projected in terms of criminal liability for rendering military service.

"There was no decision in Nuremberg," writes Benjamin Ferencz, one of the prosecutors there, "which would support a conclusion that the United

120 AGGRESSIVE WAR

States Armed Forces, like pirate ships, are criminal organizations."²¹ Nor was there any decision that international law confers immunity from military service on the basis of an individual's personal judgment that his country's foreign and military policies are wrong. Much less was it decided that domestic courts can be expected to sit in judgment on the foreign policies of the very government of which those courts are a part. The Nuremberg and Tokyo judgments were rendered by international tribunals on a *post mortem* basis (all too literally), surrounded by virtual libraries of the defeated governments' most secret papers. Professor Falk overlooks these factors, I believe, in suggesting that domestic courts sitting during the course of hostilities may be called upon to follow in the footsteps of Nuremberg, let alone embrace its "wider logic."

Lawyers called upon to represent young men who refuse to serve are abundantly justified in raising both the constitutional and the Nuremberg arguments in their defense. The force and sincerity of such contentions may serve their clients well even if they do not prevail as propositions of law. Judges and juries should be made aware of the tenuous basis on which they are asked to attribute criminal guilt to men whose driving motive may be that of obedience to a higher law. Furthermore, these arguments based on constitutional or international principle are of great public benefit in projecting profound moral and political issues in the legal dimension and expanding public understanding of our national predicament.

But the predicament itself is not, I believe, sus-

6 War Crimes:
Son My

MILITARY OPERATIONS . . . swelled in size and savagery. Against the stubborn guerrilla warfare . . . the U.S. Army poured in regiments, brigades, divisions. . . . [The enemy] burned, ambushed, raided, mutilated; on occasion they buried prisoners alive. Americans retaliated with atrocities of their own, burning down a whole village and killing every inhabitant if an American soldier was found with his throat cut, applying the 'water cure' and other tortures to obtain information. They were three thousand miles from home, exasperated by heat, malaria, tropical rains, mud and mosquitoes . . . and officers on occasion issued orders to take no more prisoners."

South Vietnam 1967-1968? No—the Philippines, 1899-1900, as described by Barbara Tuchman.¹ Her account of the reaction to the suppression of the Philippine “insurrection” that accompanied our annexation of those islands is an extraordinary reverse *déja vu* of the current crisis of feeling about the Vietnam war and the way it is being waged.

124 WAR CRIMES IN VIETNAM

Eyewitness Accounts . . .

Eyewitness account of the killing of Jews by German SS-men on Oct. 5, 1942, at Dubno in Ukrainia (U.S.S.R.), from an affidavit by Hermann G. Graebe, a German construction-engineer, Nuremberg Document 2922-PS.

I drove to the site . . . and saw near it great mounds of earth, about 30 meters long and 2 meters high. Several trucks stood in front of the mounds. Armed Ukrainian militia drove the people off the trucks under the supervision of an SS-man. The militia men acted as guards on the trucks and drove them to and from the pit. All these people had the regulation yellow patches on the front and back of their clothes, and thus could be recognized as Jews . . .

I walked around the mound, and found myself confronted by a tremendous grave. People were closely wedged together and lying on top of each other so that only their heads were visible. Nearly all had blood running over their shoulders from their heads. Some of the people shot were still moving. Some were lifting their arms and turning their heads to show that they were still alive. The pit was already two-thirds full. I estimated that it already contained about 1,000 people. I looked for the man who did the shooting. He was an SS-man, who sat at the edge of the narrow end of the pit, his feet dangling into the pit. He had a tommy gun on his knees and was smoking a cigarette. The people, completely naked, went down some steps which were cut in the clay wall of the pit and clambered over the heads of the people lying there to the place to which the SS-man directed them. They lay down in front of the dead or injured people; some caressed those who were still alive and spoke to them in a low voice. Then I heard a series of shots. I looked into the pit and saw that the bodies were twitching or the heads lying already motionless on top of the bodies that lay before them. Blood was running from their necks. I was surprised that I was not ordered away, but I saw that there were two or three postmen in uniform nearby. The next batch was approaching already. They went down into the pit, lined themselves up against the previous victims and were shot. When I walked back, round the mound I noticed another truckload of people which had just arrived. This time it included sick and infirm people.

WAR CRIMES IN VIETNAM 125

... From Two Wars

Eyewitness accounts of the killings in Son My, as reported by Richard Hammer in One Morning in the War (1970) pp. 135-36.

Led by a group of GI's, Pham Phon, his wife and three small children reached the canal. There, "I saw a lot of people who were grouping there, people were crying, especially babies were crying. But GI's stand on both sides of the canal so nobody ... nobody can move away."

"Meanwhile," says Phon, "another group of GI's search the next hamlet, the sub-hamlet called Binh Dong, about five hundred meters from my hamlet. And the GI's had other people from this new hamlet. They brought them to the canal. There must have been more than one hundred, but who can count at such a time."

When Phon saw the Americans herding this large group from Binh Dong to the canal, he had a premonition of disaster. And this was reinforced by the sounds of gunfire that he heard from Xom Lang. "I tell my wife and my kids, slip into the canal when GI not looking. We watch for our chance and we do that. So then the GI begin to shoot at the standing people and at the sitting people on the banks of the canal. They fall into the canal and cover us with their bodies. So we were not wounded, myself, my wife and my two sons. My little daughter, only seven years old, she was wounded in the arm when GI's shoot into the canal when they heard the people groaning and making much noise."

Just as the slaughter at the canal began, Richard Roe happened to be passing by. "They had them in a group, standing over a ditch—just like a Nazi-type thing," he remembers. "One officer ordered a kid to machine gun everybody down. But the kid couldn't do it. He threw the machine gun down and the officer picked it up. I don't remember seeing any men in the ditch. Mostly women and kids."

Roe left for another part of the hamlet. Later he returned ... Roe was at the canal, sitting on a mound eating some chow with John Doe. As they were eating, the two noticed that "some of them were still breathing. They were pretty badly shot up. They weren't going to get any medical help, and so we shot them, shot maybe five of them."

126 WAR CRIMES IN VIETNAM

What actually happened at Son My (better but inaccurately known as My Lai ) in March of 1968 is and may well remain obscured by the fog of war, the passage of time, and the self-interest of surviving participants and observers. Especially in view of the criminal charges pending against a number of those involved, it is no part of the purpose of this book to point the finger of guilt at any individual. Whether the killings constituted a war crime is the question first to be examined and, for this purpose, it can be taken as undisputed that on March 16, 1968, American troops at Son My killed a large number of the village residents of both sexes and all ages. According to President Nixon, who presumably was well briefed: "What appears was certainly a massacre, under no circumstances was it justified. . . . We cannot ever condone or use atrocities against civilians . . ."

Son My is a village in Quang Ngai Province, situated close to the seacoast in the narrow northern neck of South Vietnam, about 100 miles south of the 17th Parallel demarcation line. In 1954, at the time of the partition, thousands of Quang Ngai's inhabitants preferred the Hanoi regime and moved north. In later years many returned as Vietcong organizers; the entire province became a stronghold of the National Liberation Front (NLF), and Son My village came under Vietcong control in 1964. From time to time there were skirmishes between the Vietcong and the South Vietnamese

° The official name of the politico-military organization whose military arm is referred to in the United States as Vietcong, meaning Vietnamese Communist.

WAR CRIMES IN VIETNAM 127

(ARVN) units, and in 1967, after the great Ameri-
can build-up, American Army patrols appeared from
time to time, but without untoward incident. In
January, 1968, the Tet offensive brought severe
fighting in the nearby provincial capital of Quang
Ngai, but Son My itself did not suffer. By this time,
however, a large number of other villages in the
province had been destroyed, as a result of Ameri-
can search and destroy operations coupled with ex-
tremely heavy air strikes.²

The Son My killings took place in the course of a
standard type of American military operation in
Quang Ngai, the nature of which was a sudden lift
of troops by helicopter, in and on all sides of a re-
ported enemy unit, in an attempt to close a trap on
it and destroy it. In this instance the operation,
under the code name "Muscatine," was carried out
by an *ad hoc* unit of three infantry companies,
called "Task Force Barker" after its commander,
the late Lieut. Col. Frank A. Barker Jr. The parent
unit of the task force was the 11th Brigade, which
in turn was part of the newly formed Americal
Division, commanded by Maj. Gen. Samuel W.
Koster.

About mid-March, 1968, the American command
received information that a strong Vietcong unit,
the 48th Local Force Battalion, was regrouping
after the Tet offensive at Son My, in the hamlet of
My Lai. Task Force Barker thereupon planned a
helicopter operation for March 16, under which one
of its three companies would go into My Lai and
engage the enemy, while the other two companies
would be set down to the north and east of the tar-

(LC)

128 WAR CRIMES IN VIETNAM

get, to prevent the Vietcong from escaping the trap.

It appears that there was in fact a Vietcong unit in My Lai, centered in the subhamlet of My Khe, shown on American military maps as My Lai (1). Whether because of linguistic and map confusion or for some other reason, however, the central target of the attack on the morning of March 16 was the subhamlet Xom Lang in the hamlet Tu Cung, labelled My Lai (4) on the American maps, about two miles distant from My Khe where the Vietcong were based.

Consequently, when C Company of Task Force Barker went into Xom Lang that morning, expecting heavy opposition, it encountered none. The company had had little combat experience, and had recently suffered casualties from mines and booby-traps that had enraged and frightened the men; apparently there had been brutal and inexcusable killings of Vietnamese before the assault on Xom Lang.

What happened when the soldiers reached the dwellings is too well-known from newspaper and magazine photographs, and the accounts of numerous participants to warrant repetition.³ It appears certain that the troops had been told to destroy all the structures and render the place uninhabitable; what they had been told to do with the residents is not so clear. However that may be, the accounts indicate that C Company killed virtually every inhabitant on whom they could lay hands, regardless of age or sex, and despite the fact that no opposition or hostile behavior was encountered. There were few survivors, and based on the prior population of the area, the deaths attributable to C Com-

WAR CRIMES IN VIETNAM 129

pany in Xom Lang and Binh Dong, together with other killings said to have been perpetrated a few hours later by a platoon of B Company a few miles to the east in the subhamlet My Hoi, amounted to about 500.

There was certainly nothing clandestine about the killings. About 80 officers and men went into the Xom Lang area on the ground. Above them, at various altitudes, were gunship, observation and command helicopters. There was constant radio communication between the various units and their superiors, and these were monitored at brigade headquarters. A reporter and a photographer from an Army Public Information Detachment went in with the troops and witnessed and recorded the course of events virtually from start to finish. The pilot of an observation helicopter, shocked by what he saw, reported the killings to brigade headquarters and repeatedly put his helicopter down to rescue wounded women and children. Command helicopters for the divisional, brigade and task force commanders were assigned air space over the field of action, and were there at least part of the time.

Such were the tragic fruits of Operation Muscate in the village of Son My. Beyond doubt there were crimes, but were they "war crimes"? The answer to this question is not altogether simple, and neither is it unimportant, as it may bear closely on issues of personal liability, and the authority under which alleged perpetrators may be tried.

The complications arise from the multilateral nature of the Vietnam war and its guerrilla charac-

130 WAR CRIMES IN VIETNAM

ter, marked by the absence of any military "front"
dividing the two sides. Directly involved in the
fighting are on the one side the North Vietnamese
Army and the Vietcong, and on the other the South
Vietnamese units and the greatly stronger allied
forces of the United States, as well as contingents
from South Korea, the Philippines, Thailand, Aus-
tralia and New Zealand. Until the Cambodian ex-
cursion, all of the ground fighting took place on the
territory of South Vietnam, but large parts of the
country are controlled by the Vietcong, and Son
My might well have been regarded as "enemy"
territory in that sense at the time of the assault.

With the exception of the NLF, all participants
in the conflict are parties to the four Geneva Con-
ventions of 1949, of which the two most important
for present purposes are the "Prisoners of War" and
"Protection of Civilian Persons in Time of War"
conventions. But in June, 1965, when the Inter-
national Committee of the Red Cross addressed a
letter to the four principal belligerents declaring
that they were all bound by the 1949 conventions
and asking for information concerning the steps
being taken to comply with the prisoner-of-war pro-
visions, North Vietnam as well as the NLF declined
to acknowledge that they were obligated under the
conventions, while declaring that prisoners were
being "well treated" (North Vietnam) or "hu-
manely treated" (NLF). And in fact neither of the
two has complied with the conventions. North Viet-
nam in particular has consistently refused to carry
out the reporting, correspondence and neutral in-
spection provisions relating to prisoners of war, and

WAR CRIMES IN VIETNAM 131

the Vietcong units have commonly disregarded the requirements that combatants shall carry arms openly and "have a fixed distinctive sign recognizable at a distance."

The legal situation is further complicated by the fact that the Geneva Conventions as a whole apply only to "armed conflict . . . between two or more" signatory nations, while Article 3, containing certain "minimum" prohibitions of inhumane treatment of prisoners or civilians, applies also to "armed conflict not of an international character occurring in the territory of" a signatory power.⁴ Whether the Vietnamese war is a "civil" or "international" war is one of the points in dispute, and the phrase "international civil war" is nothing but a handy verbal compromise that solves nothing. However that may be, there is no room whatsoever for a North Vietnamese contention that they are not bound at least by Article 3 and, since their regular troops are engaged with those of South Vietnam and its allies in South Vietnamese territory, there appears to be little force in their effort to escape responsibility under the conventions in their entirety. The NLF, as a nonsignatory, is in a much stronger position with respect to the particular provisions of the conventions but, of course, is bound, as is every organized military force claiming or aspiring to sovereignty, by the customary laws of war.

International lawyers have discussed at length whether and to what extent North Vietnam and the NLF are bound by the conventions⁵ and, if negative answers are supportable, the question then

132 WAR CRIMES IN VIETNAM

arises whether South Vietnam and the United States
are bound if their opponents are not. The conven-
tions themselves do not say that a signatory's ob-
ligation to comply is dependent on reciprocity, and
in any event customary law binds the United States
as it does the NLF.

But so far as concerns the obligations of the
United States, we need not pursue these vexing
questions further. Claiming as it does to be an inter-
venor only to protect South Vietnam against ag-
gression, and to be fighting under the banner of
justice and humanity, the United States cannot
possibly take the position that her forces are not
bound by the laws of war, whether customary or
embodied in treaties to which she is signatory. To
the credit of our Government, it has made no such
claim, and acknowledges that its conduct of mili-
tary operations, whether against North Vietnamese
or Vietcong, is subject to those laws and treaties.

The crucial difficulty is that neither at Son My,
nor in most of the other actions charged against our
forces, has it been clear that the victims were either
North Vietnamese or Vietcong. Indeed, the basis
of the charge is that often they are not, and that we
are indiscriminately killing civilians who may be
and often are South Vietnamese innocent of any
hostile action against our troops. What laws of war,
if any, govern the relations between those troops
and the civilian population of South Vietnam?

Before 1949, this question would have been gov-
erned by Section III of The Hague Convention of
1907, entitled "Military Authority over the Territory
of the Hostile State," and reflecting in the title its

WAR CRIMES IN VIETNAM 133

basis in the customary laws of war, which apply
only between belligerents. The issue would gen-
erally be whether the place where the challenged
action took place should be regarded as "friendly"
territory controlled by our allies, or "enemy" ter-
ritory controlled by the NLF and to which the laws
of war would apply.

The Geneva "Civilian Persons" Convention, how-
ever, applies to "all cases of partial or total occupa-
tion of the territory of" a signatory, and the persons
protected by the convention include "those who, at
a given moment . . . find themselves, in the case
of a conflict or occupation, in the hands of a Party
to the conflict or Occupying Power of which they
are not nationals." On their face, these provisions
would appear to cover the situation of South Viet-
namese nationals who, like the inhabitants of Son
My, find themselves "in the hands" of the United
States forces, but this is rendered dubious by still
another provision, which excludes from the con-
vention's coverage "nationals of a co-belligerent
State" which "has normal diplomatic representation
in the State in whose hands they are." The theory
of this clause is that the inhabitants can rely on
normal diplomatic processes for protection against
abuse, but it is certainly doubtful whether the
South Vietnamese Government is either able or
disposed to furnish such protection for its na-
tionals "in the hands of" the United States. On this
basis it could be argued that all South Vietnamese
nationals enjoy the protection of the Geneva Con-
vention *vis-a-vis* the American forces, but this con-
clusion is by no means clear.

134 WAR CRIMES IN VIETNAM

If the more conservative view that the laws of war do not apply to American-South Vietnamese relations generally is taken, then one must fall back on the orthodox distinction between “friendly” and “enemy” territory. If an American soldier rapes and murders a South Vietnamese girl in Saigon, it is a crime punishable by court-martial under the articles of war,* but not a war crime. The terrible episode poignantly described by Daniel Lang in “Casualties of War,” involving the American patrol that kidnapped a South Vietnamese girl to serve as luggage-carrier and lust-gratifier, and then murdered her, was apparently not a war crime, for the same reasons.⁶

But Son My was in an area regarded as a Vietcong stronghold, and the hamlets assaulted were thought to be Vietcong military bases. The troops went in expecting to encounter resistance, and under orders to destroy the habitations and deal ruthlessly with any resistance. It would be highly artificial to say that this was not “hostile” territory with the meaning of the Hague Convention, or to question the applicability of the laws of war to the events of March 16, 1968, at Son My. What, then, were the applicable laws?

The presence of infants and the aged, as well as many women, among those killed at Son My underlined the horror of the episode, but is not directly relevant to the legality of what was done. It is sad but true that the weak and helpless are not exempt

* The crime would also be punishable under Vietnamese law, but Americans in South Vietnam, under the applicable assistance treaties, are immune from Vietnamese criminal process.

WAR CRIMES IN VIETNAM 135

from the scourge of war. Indeed, they are likely to be the first to succumb to the starvation and other deprivations that are the consequence and, indeed, the purpose of an economic blockade. In this day and age they are at least as often the victims of aerial bombardment as are regular troops. The death of an infant in consequence of military operations, therefore, does not establish that a war crime has been committed.

All this is as true in Vietnam as in any other war. Furthermore, in Vietnam the weaker inhabitants are not only victims, but often also participants. It is not necessary to be a male, or particularly strong, to make a booby-trap, plant a mine, or toss a hand grenade a few yards. American soldiers are often the losers in these lethal little games played by those who appear helpless and inoffensive. Furthermore, these actions are not occasional aberrations; on the contrary, they are basic features of Vietcong strategy. As the leading military figure of North Vietnam, General Vo Nguyen Giap, has put it:

> The protracted popular war in Vietnam demanded ... appropriate forms of combat: appropriate for the revolutionary nature of the war in relation to the balance of forces then showing a clear enemy superiority. ... The form of combat adopted was guerrilla warfare ... each inhabitant a soldier; each village a fortress. ... The entire population participates in the armed struggle, fighting, according to the principles of guerrilla warfare, in small units. ... This is the fundamental content of the war of people.⁷

136 WAR CRIMES IN VIETNAM

Now, guerrilla warfare is not intrinsically unlawful, but as waged by the Vietcong it is undeniably in violation of the traditional laws of war and the Geneva Conventions, based as they are on the distinction between combatants and noncombatants. Combatants need not wear uniforms (which the North Vietnamese generally do) but must observe the conventional four requirements: to be commanded "by a person responsible for his subordinates"; to wear "a fixed distinctive emblem recognizable at a distance"; to "carry arms openly"; and to "conduct their operations in accordance with the laws and customs of war." The Vietcong commonly disregard at least the second and third provisions, and in response to the Red Cross inquiry, declared that they were *not* bound by the Geneva Conventions, on the grounds that they were not signatories and that the conventions contained provisions unsuited to their "action" and their "organization"... of armed forces."

Like a spy, a guerrilla may be a hero, but if he engages in combat without observing the requirements, he violates the laws of war and is subject to punishment, which may be the death penalty. Nor is there any special court for juveniles; the small boy who throws a grenade is as "guilty" as the able-bodied male of military age. This may seem a harsh rule, but it is certainly the law, and its continuing validity was reaffirmed in several of the Nuremberg trials. As one of the tribunals put the matter:

> We think the rule is established that a civilian who aids, abets, or participates in the fighting

WAR CRIMES IN VIETNAM 137

is liable to punishment as a war criminal under
the rules of war. Fighting is legitimate only for
the combatant personnel. . . . It is only this
group that is entitled to treatment as prisoners
of war and incurs no liability beyond detention
after capture or surrender.⁸

However, Richard Falk and other international lawyers have strongly pressed the argument that an insurgent revolutionary movement cannot possibly comply with the rules for the identification of combatants, or other laws of war, especially when confronting a foe so vastly superior in mobility and firepower as the United States. "I would suggest," Falk writes, "that the insurgent faction in an undeveloped country has, at the beginning of its struggle for power, no alternative other than terror to mobilize an effective operation."⁹

This is, of course, the familiar argument of "military necessity" which we have already examined. If emblems and the other indicia of combatant status are to be discarded and the whole population engaged in combat, as Giap describes, then the same argument of necessity may justify the power against whom this type of war is directed in resorting to hitherto unlawful means to counter the guerrilla forces. As will shortly appear, this point may have some relevance to the lawfulness of the population transfers and "free-fire zones" that have become a common feature of our military policy in Vietnam.

But however far the "necessity" argument be
stretched, it cannot justify what was done at Son

(LC)

138 WAR CRIMES IN VIETNAM

My. Given the history and location of the village,
the Americans might have had reason to suspect
that many of the inhabitants were sympathetic to
the Vietcong. There has been no suggestion, how-
ever, that there was reason to believe that any
particular individual had engaged in hostile con-
duct. Even had there been such grounds, the
slaughter of all the inhabitants would have been
an unlawful and atrocious reaction; the Geneva
Conventions are explicit that persons suspected of
violating the laws of war shall "be treated with hu-
manity" and not punished without trial and oppor-
tunity to contest the charge. And while small boys
can toss grenades, infants in arms cannot, and were
nonetheless killed along with the rest.

Painfully anticipatory of Son My was an action of
German troops during the occupation of Greece,
described in the Nuremberg tribunal's judgment in
the so-called "Hostage case":

On 5 April 1944, the notorious "blood bath" at Klissura occurred. The facts are: On the date in question an engagement between [guerrilla] bands and German troops occurred about 2½ kilometers outside the village of Klissura. After the retreat of the bands, the troops moved into the village and began searching for evidence of band support. None was found. Later in the afternoon, units of the 7th SS Panzer Grenadier Regiment entered the village and began almost immediately to kill the inhabitants. At least 215 persons, and undoubtedly more, were

WAR CRIMES IN VIETNAM 139

killed. Among those killed were 9 children less
than 1 year old, 6 between 1 and 2 years of
age, 8 between 2 and 3 years, and 4 between
4 and 5 years. There were 72 massacred who
were less than 15 years of age, and 7 people in
excess of 80 years. No justification existed for
this outrage. It was plain murder.¹⁰

On the basis of this and other episodes involving
troops under his command, and his "indifference to
these unjustified and brutal murders," General Hel-
muth Felmy was sentenced to a 15-year prison term.
The three-member tribunal comprised judges of
the Supreme Courts of Iowa and Nebraska, and a
Michigan attorney who had served on the United
States Supreme Court's Advisory Committee on
Rules of Criminal Procedure.

I have dealt with the Son My killings at length
because of the scale of the disaster, the extensive
though belated publicity it has received, and the
fact that it is the only mass killing of the Vietnam
war that our Government has acknowledged as
a crime. It has been said that "the massacre at Son
My was not unique,"¹¹ but I am unaware of any
evidence of other incidents of comparable magni-
tude, and the reported reaction of some of the sol-
diers at Son My strongly indicates that they
regarded it as out of the ordinary. There have, how-
ever, been numerous indications that our troops
have killed many other civilians under parallel cir-
cumstances, and equally in violation of the laws of
war. Obviously, this state of affairs poses questions

140 WAR CRIMES IN VIETNAM

far more searching than the criminal liability of the
soldiers who did the shooting at Son My.

In February, 1965, the United States began a program of aerial bombardment of targets in North Vietnam that lasted, with interruptions, until President Johnson announced its cessation in the famous television address declaring that he would not seek re-election. From the start the North Vietnamese branded the raids unlawful, and during 1965 and 1966 repeatedly threatened to try captured American pilots as war criminals under the Nuremberg precedents.

Home-grown critics have been almost equally sharp; Lt. Gen. James Gavin, for one, described the bombing as "militarily unsound and morally wrong." Whether or not the bombing of North Vietnam was "militarily unsound" is a debatable but not a legal issue, and General Gavin did not make it clear whether he believed the attacks to be "morally wrong" *because* "militarily unsound," or whether he would regard them as morally reprehensible even if militarily effective. Nor did the North Vietnamese go beyond a general invocation of "Nuremberg" to clarify the basis of their threatened criminal charges against the pilots.

In fact, as already remarked, the Nuremberg and Tokyo judgments are silent on the subject of aerial bombardment. Whatever may have been the laws of war before the Second World War, by the time the war ended there was not much law left. Since both sides had played the terrible game of urban destruction—the Allies far more successfully—there

WAR CRIMES IN VIETNAM 141

was no basis for criminal charges against Germans or Japanese, and in fact no such charges were brought.*

In the winter of 1966, Harrison Salisbury's reports from North Vietnam raised a storm of criticism of our bombing. In retrospect, this marked public reaction seems more significant than the content of his dispatches which, while graphically describing the extent of the physical damage, fell far short of demonstrating any intent to cause civilian casualties. After the experience of the Second World War one might have supposed it to be common knowledge that heavy bombing near populated areas— even if strictly military objectives are targeted— inevitably kills people and destroys their dwellings. That Salisbury's reports came as such a shock can only be explained by forgetfulness and wishful thinking, fostered by benighted Pentagon publicity that sought to convey that our bombs are destructive of North Vietnamese bridges, factories, and gunsites, but harmless to human beings.

Others who have visited North Vietnam have remarked on the prevalence of bomb damage in rural areas apparently remote from any worthwhile

* In consequence of a curious course of history, only Japanese courts have ever considered the legality of aerial bombardment. In Aug., 1942, apparently in reaction to Gen. James Doolittle's famous carrier-launched raid over Japan the previous April, Japan passed a law for the punishment of enemy aviators who bombed illegal targets. A number of Doolittle's flyers were captured by the Japanese, and executed pursuant to this law. The trials appear to have been *pro forma*, and after the war several Japanese officers were convicted by the Americans of war crimes in that they had executed the pilots without a *bona fide* trial.

In 1963, a Tokyo civil court rendered judgment in a suit for damages brought by survivors of the Hiroshima and Nagasaki bombings. The court denied recovery, but characterized the atomic bombings as "contrary to the fundamental principles of the laws of war."¹²

142 WAR CRIMES IN VIETNAM

targets, and reported the use of antipersonnel bombs. It is difficult to assess these strictures. Anti-personnel bombs would be suitable for use against gunsites or other military locations. Things do not look the same from a jet bomber as they do on the ground, and the possibility of error is very great. Given the state of aerial warfare to which we were brought by the Second World War, in any event, I can see no sufficient basis for war crimes charges based on the bombing of North Vietnam. Whatever the laws of war in this field *ought* to be, certainly Nuremberg furnishes no basis for these accusations.

If the silence of Nuremberg answers no questions about what "ought" to be the law, it certainly asks them, and these unanswered questions are especially relevant to American bombing policies not in North, but in South Vietnam.

Is there any significant difference between killing a babe-in-arms by a bomb dropped from a high-flying aircraft, or by an infantryman's point-blank gunfire? As we have seen, by common practice of the antagonists in the Second World War massive aerial bombardment of population centers, for the purpose of destroying habitations and killing or terrorizing the population, became an accepted part of "strategic air warfare." If that is to be tolerated under the customary law of war, would that have justified Allied ground forces in entering German and Japanese towns with guns blazing, and killing off the infants who survived the bombing? Few would support such a proposition.

WAR CRIMES IN VIETNAM 143

tion, but the distinction is seldom articulated other
than by describing the aviator's act as more "im-
personal" than the ground soldier's.

This may be psychologically valid, but surely is
not morally satisfactory. The answer, if there is
one, must be found in a rule of reason, closely
related to military necessity. The Allied aviator over
Berlin and the infantryman occupying a German
town were in quite different situations. The aviator
was attacking a functioning part of the German
war machine with a weapon that could not dis-
criminate among those in the target area, any more
than could the captain of a ship participating in
a naval blockade. The soldier was part of a force
occupying conquered territory, and was in a posi-
tion to observe and discriminate among the inhabi-
tants and fulfill his military functions without
shooting babes-in-arms.

An important ingredient of this principle of rea-
son and necessity is proportion: The military end
sought should be sufficient to warrant the suffering
and destruction inflicted. To a degree this rule of
proportion was observed during the Second World
War. Oxford and Cambridge were not bombed;
neither was Heidelberg, and it is a terrible memory
that we did not stay our hand at Dresden, when
the war was as good as won. The rights and wrongs
of Hiroshima are debatable, but I have never
heard a plausible justification of Nagasaki. It is
difficult to contest the judgment that Dresden and
Nagasaki were war crimes, tolerable in retrospect
only because their malignancy pales in comparison
to Dachau, Auschwitz and Treblinka.

144 WAR CRIMES IN VIETNAM

These reflections have taken us away from Viet-
nam where, despite the enormous tonnage of bombs
dropped, there have been no urban holocausts. The
massive bombardments by the B-52's have been
mainly in rural and wooded areas, directed against
suspected enemy troop concentrations. But in South
Vietnam there has been a great deal of aerial ac-
tivity on our part which does not fit this pattern at
all, and that comes much closer to the situation of
the ground soldier. Indeed, most of these aerial ac-
tions are carried out in close concert with ground
forces, and are part of a single joint operation.

A great many of these actions involve the de-
struction of hamlets from which a sniper bullet has
been fired, or a shot has been fired at an American
helicopter, or near which a mine or booby trap has
exploded, or even which are merely suspected of
having harbored Vietcong. A United States Marine
Corps "Ultimatum to Vietnamese People" declared
that "The U.S. Marines will not hesitate to destroy
immediately, any village or hamlet harboring the
Vietcong," and another Marine leaflet informed the
inhabitants that their village "was bombed because
you harbored Vietcong" and "will be bombed again
if you harbor Vietcong in any way."

The by now voluminous reportorial literature on
the Vietnamese war leaves little doubt that air
strikes are routinely directed against hamlets and
even single habitations on the basis described
above, in reliance on information of varying re-
liability. Obviously, these tactics are a response to
the nature of guerrilla warfare, and the difficulty of

WAR CRIMES IN VIETNAM 145

sifting out the "enemy" in a society where there are many shades of inimical activity, and friend and foe are not readily distinguishable. Making full allowance for these difficulties, however, it is clear that such reprisal attacks are a flagrant violation of the Geneva Convention on Civilian Protection, which prohibits "collective penalties" and "reprisals against protected persons," and equally in violation of the Rules of Land Warfare.¹³ Son My, after all, was suspected of harboring the Vietcong, and if (as has been seen) it was nonetheless a war crime to round up the inhabitants and shoot them without trial, it would be equally criminal to have killed them by a surprise air attack.

Even more ominous problems are created by the so-called "free-fire" (artillery) or "free-strike" (air) zones that have been a frequent means of dealing with the guerrilla problem. The basic theory of this technique is that since the guerrillas live among the rural population and are difficult to distinguish, the thing to do is to remove the rural population, leaving the Vietcong isolated and exposed. Proponents of the technique often refer to Mao Tse-tung's figure of speech about guerrillas as fish, and the people as the water in which the fish swim. To catch the fish, remove the water. Q.E.D.

The method of these operations is to select an area where the Vietcong are thought to be strong, and saturate it with ground troops brought in by helicopter, with strong air support. The villagers are evacuated to refugee camps, more or less forcefully, and the homes, livestock, and all useful appurtenances destroyed, so as to render the area at

[LC]

146 WAR CRIMES IN VIETNAM

least temporarily uninhabitable. Thereafter the entire area is declared a "free-fire" zone of operations, wherein people or things can be fired upon at will and discretion, and without prior warning, or clearance from the Vietnamese provincial authorities.

Now there is enough question about the legality of the evacuation procedures alone to give pause, for Article 49 of the Geneva Convention prohibits "individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power." To be sure it is doubtful, as we have seen, whether this article applies to relations between the United States and the South Vietnamese civilian population. Likewise, the evacuations are generally conducted with the approval of the Saigon Government. And finally, Article 49 goes on to authorize "total or partial evacuation of a given area if the security of the population or imperative military reasons so demand."

Nevertheless, serious questions remain, for it is not at all clear whether the clause just quoted was intended to justify population transfers of this type, in which devastation of the evacuated area is the prime objective. "Persons thus evacuated," the article elsewhere provides, "shall be transferred back to their homes as soon as hostilities in the area in question have ceased," but in South Vietnam generally the homes will have been destroyed. Furthermore, it is required that: "The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected

WAR CRIMES IN VIETNAM 147

persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated." It is common knowledge that the record of fulfillment of our obligations to the refugees we have, in military parlance, "generated," has been shockingly inadequate. Samuel P. Huntington estimated that one and a half million refugees have passed through the camps, where conditions "have at times been horrendous."¹⁴ Jonathan Schell observed the devastation of a "free-fire" zone of some 200 square kilometers where 17,000 people were living, by means of an operation which "was not supposed to generate any new refugees" because no camps were available.¹⁵

If the legality of the population transfer program remains a doubtful proposition, that can hardly be said of the "free firing" and the air strikes carried out in the zone so created. "In the mountains, just about anything that moves is considered to be V.C.," an Air Force major told Jonathan Schell: "We've cleared most of the people out of there, and anything that's left has got to be V.C." And so helicopters and small observation planes go "squirrel-hunting" for individuals observed in the devastated areas, using machine-guns from the helicopters, and calling in air strikes—"sniping with bombs." This is using the aircraft for the same purposes that the infantryman uses his gun, and the pilot ought to be held to the same standards of distinguishing combatants from noncombatants. Realizing this, the pilots claim extraordinary powers of divination, professing ability to "spot the V.C."

148 WAR CRIMES IN VIETNAM

by the fact that he runs away, or "walks real proud,
with a kind of bounce in his gait, like a soldier, in-
stead of just shuffling along, like the farmers do,"
or occupies a "hootch" among the trees rather than
in the open. Perhaps the pilots are more often right
than wrong, but this certainly is not the method for
dealing with civilians suspected of hostile activity
which is required by the laws of war, and is un-
lawful for the same reasons that the Son My kill-
ings were unlawful.

Still another aspect of our conduct in Vietnam
that raises serious questions under the laws of
war is our handling of prisoners. Until recently this
matter appeared to be one of vicarious responsi-
bility for mistreatment by the South Vietnamese of
prisoners turned over to them by the American
forces. In the spring of 1970, however, the court-
martial proceedings against Lieut. James B. Duffy
disclosed distressing indications that American prac-
tice with regard to prisoners may be degenerating.

This is, to be sure, an area where the enemy has
given great provocation. Both North Vietnam and
the NLF have repudiated the Geneva Conventions.
Neither has complied with the requirements of cus-
tomary law with respect to notifications and cor-
respondence. There have been many reports of
brutal treatment of American captives, and authen-
ticated reports in 1966 and 1967 that the North
Vietnamese paraded American pilots through the
streets of Hanoi, in violation of the Geneva injunc-
tion against subjecting prisoners to "insults and
public curiosity." Much worse, in 1965 the NLF

WAR CRIMES IN VIETNAM 149

announced the execution of three American prisoners, in reprisal for South Vietnamese executions of several Vietcong "terrorists." Reprisals against prisoners of war were prohibited by the 1929 Geneva Convention, and are forbidden today under both the 1949 Convention and the American Army's Law of Land Warfare.¹⁶

These open violations on the part of the enemy may well have inclined the American authorities to turn a blind eye to the numerous reports of South Vietnamese torture and general mistreatment of prisoners that have persisted throughout the course of the war. To be sure, the United States is not legally responsible for what South Vietnam does with its own prisoners, but the matter is of importance because the American forces do not retain permanent custody of the prisoners they take, but send them to rear-area camps maintained by the South Vietnamese.

Article 12 of the Geneva Convention authorizes such transfers, but only if the transferring power "has satisfied itself of the willingness and ability" of the receiving power to observe the requirements of the Convention. If, after transfer, the receiving power does not do so, then the original captor power must "take effective steps to correct the situation or shall request the return of the prisoners." Under the Geneva Protection of Civilians Convention, the same provisions apply to civilian prisoners.

In view of the South Vietnamese record of prisoner mistreatment, it might well be doubted whether the circumstances of transfer of our prisoners to their hands was in compliance with these re-

150 WAR CRIMES IN VIETNAM

quirements. It is true that in 1966 the American commander-in-chief in Vietnam categorically declared that the transferred prisoners were being treated in accordance with the Convention.¹⁷

Confidence in the accuracy of this statement was badly shaken in the summer of 1970, as the result of a visit to Con Son prison by two Congressmen who were in South Vietnam as members of a special committee of the House of Representatives. Atrocious conditions, including the use of windowless pits called "tiger cages," were reported by the Congressmen, but it was not made clear whether any of the prisoners had previously been in American custody. However, a simultaneous report from an American Friends Service doctor, who had observed evidences of extensive torture of the inmates of a South Vietnamese interrogation center in Quang Ngai (the capital of the province in which Son My is situated), was even more disturbing, as it indicated that some of the victims had been sent there by the Americans, and that an American "intelligence adviser" was attached to the center and familiar with the circumstances.¹⁸

Whatever problems of treaty interpretation may complicate the issue of American responsibility for South Vietnamese treatment of prisoners are wholly lacking in connection with the criminal implications of the trial of Lieutenant Duffy, charged before an Army court-martial in Long Binh with the murder of an unarmed Vietnamese civilian prisoner in September, 1969. The gist of the charge was that Duffy had ordered or allowed one of his sergeants to shoot the prisoner, who had been found hiding in a

WAR CRIMES IN VIETNAM 151

"hootch," and kept tied to a stake during the night before the shooting was done.

Duffy's defense was that according to his understanding of Army policy, the "body count" was the measure of military success, and that in killing the Vietnamese prisoner he was simply following that policy. In support of this defense, four other lieutenants from the same battalion testified that their instructions were to take no prisoners in combat, and that their superiors laid primary stress on the body count.

This was strong medicine indeed. In the heat of battle, killing enemy soldiers seeking to surrender is not unusual, as we have seen. But a policy of refusing to take prisoners—a denial of quarter, in the old phrase—has long been condemned by the customary laws of war, as it is in The Hague Convention of 1907 and in the military regulations of all modern armies. Furthermore, the Duffy case was not a combat killing, as the prisoner was unarmed and safely secured.

In response to the testimony of the four lieutenants, the Pentagon at once denied that Army practice tolerated killing prisoners, and labeled such conduct as "murder." But the military court hearing the case, after convicting Duffy of murder, revoked the verdict, convicted him of involuntary manslaughter, and sentenced him to six months' confinement. No reasons for the decision were given, but the change of front, coupled with the undisputed testimony of the four lieutenants, strongly suggests that the judges found some substance in the defense.¹⁹

152 WAR CRIMES IN VIETNAM

Such are some of the more disturbing features of our operations in Vietnam, and such is the setting of the Son My killings, which threw the spotlight of publicity into these dark corners: forced resettlement of millions of rural families with utterly inadequate provision for their health and human dignity; complicity in the torture of prisoners by our wards, the South Vietnamese; enthusiasm for body counts overriding the laws of war on the taking of prisoners; devastation of large areas of the country in order to expose the insurgents; outlawry of every visible human being in the free-fire zones; slaughter of the villagers of Son My even to the infants-in-arms.

Are these things a terrible, mad aberration, or
can cause and responsibility be traced? In part, no
doubt, they are due to the features of the Vietnam
conflict which have made the laws of war unusually
difficult of application. The enemy does not respect
those laws, the terrain lends itself to clandestine
operations in which women and children frequently
participate, the hostile and the friendly do not label
themselves as such, and individuals of the yellow
race are hard for our soldiers to identify. As in the
Philippines 65 years ago, our troops are thousands
of miles from home in uncomfortable, dangerous
and unfamiliar surroundings. No one not utterly
blind to the realities can fail to acknowledge and
make allowance for the difficulties and uncertainties
they face in distinguishing inoffensive noncombatants
from hostile partisans.

These unlovely circumstances were not the crea-

(LO)

7 Crime and
Punishment

OPINION OR "REACTION" samplings taken shortly after the first news of the Son My incidents revealed that nearly two-thirds of those interviewed denied feeling any shock. Some observers found this lack of public indignation or shame, as well as some of the comments recorded by the samplers, more upsetting than the killings themselves.¹

It is neither surprising nor particularly disturbing, however, that many of those interviewed refused to believe that anything untoward had occurred. "I can't believe an American serviceman would purposely shoot any civilian," declared Alabama's George Wallace, "any atrocities in this war were caused by the Communists." Others described the reports as "a prefabricated story by a bunch of losers," or labeled them incredible because "it's

CRIME AND PUNISHMENT 155

contrary to everything I've learned about America." These outright rejections of undisputed information are a familiar defense mechanism, activated in order to ward off the shock which would accompany acceptance.

There was also a widespread disposition to discount the Son My stories on the ground that "incidents such as this are bound to happen in a war." So, too, are murders and robberies "bound to happen" in our streets, and they are likely to happen much more often if we cease to regard them as reprehensible. In fact Son My was unusual, both in its scale and the candor with which the operation was carried on, with Army photographers on the scene and commanders in helicopters circling overhead. Those who resorted to this "sloughing-off" justification are, nonetheless, correct in assuming that unjustifiable killings of prisoners and civilians on a smaller scale are bound to and indeed do happen in a war, and what they overlook is that in the United States Army, when detected they have generally not gone unpunished. During the Second World War many American soldiers were court-martIALled and severely punished for killing or assaulting civilians in violation of local law or the laws of war. The fact that we are now fighting in Asia instead of Europe is hardly a worthy basis for suspending their application.

Nevertheless, there is one respect in which the public reaction, insofar as those interviewed were slow to denounce the troops who did the shooting at Son My, is sound. The thought is rarely articulated, and yet may well be lurking in the back of

156 CRIME AND PUNISHMENT

the mind, that if there is criminal guilt in this episode, it does not lie most heavily on the shoulders of those who, at least up to now, are being brought to trial. There may also be grounds for doubt that Army court-martial proceedings at Fort McPherson, Fort Benning, or some other Army post are the most suitable forum in which to test the issues that Son My raises. These questions, taken in reverse order, are the substance of this chapter.

In the long wake of the Son My disclosures, about a dozen soldiers—a company and a platoon commander, noncoms and privates—faced criminal charges for their parts in the incident. Defense lawyers made motions and brought a number of legal actions, in Army channels and in the Federal courts, to delay or prevent the court-martial proceedings. The situation was further complicated because a number of the soldiers involved at Son My had been discharged from service before the Army took official cognizance of the killings, and there was a question whether these men might be brought to trial at all, as the Supreme Court has held that ex-servicemen cannot be court-martialed for offenses committed while in service.²

One point that was much pressed by defense counsel and others was the extraordinary amount and intensity of the publicity that followed the Son My disclosures, and its possibly prejudicial effect on the trial proceedings. This, of course, is a general problem in the administration of justice which has been the subject of wide concern in recent years, and especially since the Warren Commission's comments

CRIME AND PUNISHMENT 157

on the conduct of police and press at the time of
President Kennedy's assassination. Under the rubric
of "fair trial and free press," the problem has stimu-
lated a flood of books and articles, and I confess
having myself contributed to the glut.³ Bar and press
associations have waged a war of words over the
proper balance between the needs of justice and
what the journalists call the public's "right to know."
The Supreme Court underlined the gravity of the
matter in 1966, by overturning the murder convic-
tion of Dr. Samuel H. Sheppard, on the ground that
his notorious trial in 1954 had been unfair "because
of the trial judge's failure to protect Sheppard suf-
ficiently from the massive, pervasive and prejudicial
publicity that attended his prosecution."⁴

There is no gainsaying the seriousness of this
problem in the case of the Son My defendants, for
the television and newspaper publicity was indeed
glaring and often accusatory. Most of it would not
have been tolerated under the much more rigorous
standards observed in Britain, where pretrial pub-
licity can be and often is the basis for criminal con-
tempt penalties against the offending news organs.

But it has never been, and should not now be, the
rule that publicity furnishes the basis for not pro-
ceeding against an accused individual at all—in
effect, for granting him immunity from prosecution
because of the publicity that has surrounded his
case. After all, Jack Ruby was tried for murder after
millions of television viewers had watched him
pump a bullet into Lee Oswald's stomach, and
while this would have made it very difficult for

158 CRIME AND PUNISHMENT

Ruby to deny that he fired the fatal shot, no one seriously suggested that he must therefore escape justice entirely. There is simply no way that sensational crimes can be kept out of the press, especially when most of the publicity precedes the apprehension or accusation of those eventually charged.

A much more doubtful question is whether an Army general court-martial is an appropriate judicial forum for the trial of the Son My cases. On the face of things the charges are simple enough—that Lieutenant X or Corporal Y killed or assaulted one or more human beings—but, as has been seen, the simplicity is deceptive, and searching issues of fact and law start from the cases at every turn.

If matters follow the customary course, the courts-martial will be "convened" by the commanding general of the post or military area within which the trial is to be held. This means that the commander will designate the members of the court, who function essentially like a jury, except that they not only determine guilt or innocence, but also fix the sentence if the defendant is found guilty. The members will be subordinates of the commander, will probably not be lawyers, and, since none of those as yet charged with responsibility for Son My is of high rank, the members of the court need not be. Presiding over the proceedings will be a military judge, responsible not to the commander but to the Army Judge Advocate General in Washington. The judge will wear a black robe, so that his rank will not be visible though everyone will know what it is, and he will instruct the court on such

CRIME AND PUNISHMENT 159

legal issues as may arise. The court's judgment is
subject to review as of right in a Court of Military
Review responsible to the Judge Advocate General,
and may then be reviewed by the civilian Court of
Military Appeals, if that body thinks the case im-
portant enough to warrant its attention.

Consider the issues that are likely to confront a
court-martial in the Son My cases, bearing in mind
that the defendants are represented by counsel, sev-
eral of whom are not only able but also very promi-
nent in legal circles. In its strictest form, as we have
seen, "superior orders" as a defense depends on
whether or not the defendant knew the order to
be unlawful. Of course, it will first have to be de-
termined what orders were in fact given to the
troops entering Son My, but let us assume that the
soldiers could reasonably have thought that they
were being told or encouraged to kill the inhabi-
tants. What did "unlawful" mean to them? Accord-
ing to their own accounts, two or three of the sol-
diers *did* regard the goings-on as unlawful and took
no part. But what standard of "lawfulness" were
they and the others instructed or trained to apply?
What sort of indoctrination had they had not only
from manuals or training sessions, but from observ-
ation of what was going on around them in Viet-
nam?

These questions lead to another very basic one:
What, for present purposes, is an "order"? Every-
one who has done military service knows that there
are occasions when the rule-book does not fit the
circumstances; no one is expected to follow it, and
may even get into serious trouble if he does. The

160 CRIME AND PUNISHMENT

departure from the rules may be a matter of un-
spoken but accepted practice and it would, for ex-
ample, be quite unnecessary for an officer to tell his
men in so many words to take no prisoners if, by
prior experience and the temper of the moment,
the men sense that this is how things are going to
be today.

The ultimate question of "guilt" in the trials of
the Son My troops is how far what they did de-
parted from general American military practice in
Vietnam as they had witnessed it. This may not be
germane to the question of legality under the
Geneva Conventions or the Articles of War. But the
defense of superior orders has its true base not in
technicality but in equity, and is properly invoked
by the low-ranking soldier in mitigation of punish-
ment for conduct, even though unlawful, that is
not too far removed from the behavior authorized
or encouraged by his superiors in the force in which
he serves.

Now, the searching feature of the situation is that
this defense cannot be put forward or tested with-
out, in substance, putting American military prac-
tice in Vietnam on trial. Who, other than the de-
fendants and their counsel, is prepared to do that?
One may well wonder whether either a judge ad-
vocate officer sitting as military judge, or a "jury"
of officers appointed by a post commandant, is
likely to have much enthusiasm for such a proceed-
ing, the evidentiary ramifications and politico-mili-
tary implications of which are painfully obvious.

* A defendant who is an enlisted man is entitled to demand that en-
listed men be included in the court, but the demand is rarely made in
practice because the commanders are inclined to appoint discipline-
minded top sergeants.

CRIME AND PUNISHMENT 161

The shortcomings of court-martial procedure in cases of this type were sharply revealed in the case of Lieut. James Duffy, to which I have already alluded. For Duffy put forth, in miniature, the same sort of defense that may be expected, in gross, in the Son My courts-martial. He did not claim that his superior officer had ordered him to kill the Vietnamese prisoner. He and his supporting witnesses testified rather that their commanders laid emphasis on the desirability of a "high body count"; that one of their superiors had been "angry" on a prior occasion when prisoners were taken; that the practice had developed of not taking prisoners in order to increase the body count.

Was this defense factually credible? The court-martial gave no meaningful answer. The military judge instructed the court that the rules of land warfare applied to the war in Vietnam, and that the question was whether Duffy thought he was obeying an order "that a man of ordinary sense and understanding would know to be illegal." The court thereupon convicted Duffy of premeditated murder, but on being informed that this crime carries a mandatory life sentence, revoked the verdict and convicted him of involuntary manslaughter. The president of the court, Col. Robert W. Shelton, was reported to have made some reference to "the ramifications to the Army" of Duffy's defense. According to the account in The New York Times:

> Several military lawyers attending the court-martial as spectators said privately that a full acquittal of Lieutenant Duffy would have been damaging to the Army. The Army, they said,

162 CRIME AND PUNISHMENT

already was under heavy pressure because of
the publicity about the alleged Son My massa-
cre and other suspected war crimes.

"But the court didn't want to make Duffy
suffer that badly to get the Army off the hook,"
said one young law officer. "To a lot of us it
looks like another example of the M.G.R.—the
mere gook rule—being applied," he asserted.

He explained that the expression had been
adopted facetiously by some Army legal officers
who believed that military courts were lenient
to Americans who killed Vietnamese civilians,
because the Vietnamese were regarded as some-
how second-class human beings or "mere
goeks."⁵

What is one to make of all this? "Involuntary
manslaughter" denotes an unintentional negligent
killing, and is a singularly inappropriate label for
the conduct on which Duffy's conviction was based.
To reverse the famous Gilbertian line, the crime
was made to fit the punishment.

If ever a case cried out for an explanatory opin-
ion, it is this one, but opinions are not part of court-
martial practice. If the court had thought Duffy's
defense to be fabricated, it is hard to see why the
murder conviction was revoked, since the willful
killing of an unarmed, helpless prisoner abundantly
supports it. If there was in fact no such body count
practice as Duffy and his witnesses described, could
Duffy nevertheless have believed that it existed?
That is unlikely, and the inference seems inescap-
able that the members of the court believed the

CRIME AND PUNISHMENT 163

body count testimony, at least in part, and gave it
conservative effect in mitigation. But who was respon-
sible for the body count practice, and how wide-
spread is it?

This last is the question that no ordinary court-martial will want to answer, and one over which many in high authority may wish to draw a veil. And since it is also the question that most deeply affects the integrity of the Army, it is the one that most needs answering. An ordinary court-martial is not a body of sufficient stature or independence to grapple with such far-ranging and ominous matters. It may wish to convict so that the Army will not "look bad," and cloak its actual reasons in silence. It is too easily swayed by what Colonel Shelton called "ramifications to the Army," and unable to articulate the legal or moral significance of what it does.

Both in fairness to the defendants and in response
the public need, accordingly, there is much to be
said for trying the Son My cases before a special
military commission, to which able civilian judges
and lawyers, outside the military chain of command,
might be appointed. As has been seen, the defense
of superior orders does not eliminate criminal re-
sponsibility but rather shifts it upward, and that is
the direction in which an ordinary court-martial
will be least anxious to look.

The Duffy case was not the first in which the de-
fense was based on the assertion that war crimes in
Vietnam are not isolated atrocities, but are a mani-
festation of command policy. In 1967, Dr. Howard

CRIME AND PUNISHMENT 163

body count testimony, at least in part, and gave it
decisive effect in mitigation. But who was respon-
sible for the body count practice, and how wide-
spread is it?

Both in fairness to the defendants and in response
to the public need, accordingly, there is much to be
said for trying the Son My cases before a special
military commission, to which able civilian judges
and lawyers, outside the military chain of command,
might be appointed. As has been seen, the defense
of superior orders does not eliminate criminal re-
sponsibility but rather shifts it upward, and that is
the direction in which an ordinary court-martial
will be least anxious to look.

164 CRIME AND PUNISHMENT

B. Levy, then a captain in the Army medical service, was court-martialed on charges that included disobedience to orders in that he refused to give medical training to "aidmen" of the Special Forces, better known as "Green Berets." At his trial, Levy justified his refusal on the ground that American troops in Vietnam were committing war crimes, and that he therefore should not train troops about to be sent there. Surprisingly, the military judge allowed him to offer evidence in support of his contention, but on short notice his lawyers were unable to satisfy the judge that there was a criminal "pattern of practice" in Vietnam. In any event, the argument was fraught with difficulties; nothing decided at Nuremberg or elsewhere suggests that a soldier is entitled to disobey an intrinsically legal order at Fort Jackson because other soldiers, half-way round the world, are given illegal orders. Such a theory would equally justify the cook in refusing to feed the aidmen.

But Dr. Levy had another argument, which was not sharply articulated until later—that the order to train the aidmen was itself illegal and in violation of medical ethics. According to the evidence he submitted to the court, Green Beret aidmen engaged in combat. They were "soldiers first and aidmen second." Furthermore, it was their purpose to use medicine as a political lever, and Green Beret publicity described the "use of medicine as a weapon."

Under the laws of war, doctors, nurses and medical corpsmen are military personnel, but they are noncombatants, like chaplains. They are expected

CRIME AND PUNISHMENT 165

to treat enemy wounded, carry special medical identity cards and are entitled to wear or display the Red Cross and be immune from deliberate enemy attack. The Geneva conventions and the Army rules of land warfare draw a clear separation between combat troops and noncombat medical personnel, and condemn misuse of medical noncombat status or of the Red Cross emblem.

Accordingly, there was at least some basis for argument that Dr. Levy was being unlawfully ordained to train the aidmen in unlawful activities. Furthermore, the dispensation of medicines by unqualified persons, or on a politically selective basis or as a bribe, raises serious questions of medical ethics as well as bare legality.

Nevertheless, Levy's contention failed, and he served a prison term at Leavenworth. The case is important for present purposes because of the military judge's ruling that evidence in support of criminal command practice was to be admitted—a ruling that was sure to be cited in support of comparable offers of proof in the Son My proceedings. It is an ironic touch that Dr. Levy submitted the evidence to justify disobedience to orders, whereas the Son My defendants would offer it to establish that they were obeying orders.*

While the Army legal services were interrogating, clearing, and charging the soldiers involved at Son

* In June, 1970, Daniel A. Switkes, a captain in the Army medical service, brought suit in the New York Federal court asking that the Army be enjoined from sending him to Indochina, basing his case in part on the contention that he was "entitled not to be forced to become an accomplice to war crimes."

166 CRIME AND PUNISHMENT

My, the incident was under investigation by two
other bodies. One of these is a special subcommittee
of the House Armed Services Committee, officially
entitled the "My Lai Incident Subcommittee," com-
posed of four Congressmen and chaired by F. Ed-
ward Hébert of Louisiana. The other was an inquiry
initiated by the Secretary of the Army and the Army
Chief of Staff, and conducted by Lieut. Gen. Wil-
liam R. Peers, into the reasons why high-level review
of the Son My killings had been so long delayed.

The Hébert subcommittee issued its report on
July 14, 1970, in which it declared that what hap-
pened at Son My "was so wrong and so foreign to
the normal character and action of our military
forces as to immediately raise a question as to the
legal sanity at the time of those men involved."
More significant were the subcommittee's conclu-
sions that the "My Lai matter was covered up within
the Americal Division and by the district and prov-
ince advisory teams," and that the Army had been
most uncooperative: "The manner in which most of
the Americal Division officers, in both command
and staff capacities, testified before the subcom-
mittee suggests an extreme reluctance on their
part to discuss the allegation and its justification
with any real specificity." An angry Chairman
Hébert declared that "the committee was hampered
by the Department of the Army in every conceiv-
able way."

General Peers submitted his report on March 14,
1970, but only portions of it have been made public,
for the stated and apparently sufficient reason that

CRIME AND PUNISHMENT 167

release of the restricted parts might "prejudice the
rights of defendants in current and potential crimi-
nal proceedings."⁷ He concluded "that there were
serious deficiencies in the actions taken by officials
in the Americal Division, the 11th Brigade, and
Task Force Barker, after the incident at Son My," in
that those officials did not "take appropriate action
to investigate or report." On this basis he recom-
mended that charges of "dereliction of duty and
failure to obey regulations," and in some cases of
"false swearing," be brought against 14 officers,
ranging in rank from captain to major general.

The matter was then transferred to the jurisdic-
tion of Lieut. Gen. Mathew O. Seaman, commander
of the First Army at Fort Meade in Maryland, who
shortly announced dismissal, for lack of evidence,
of the charges against seven of the officers.* The
seven remaining under charges included the com-
manders, at the time of Son My, of the Americal
Division and the 11th Brigade, to which Task Force
Barker was subordinated.

Why was the Son My incident "covered up" by
the Army? The published portions of the Peers re-
port do not reach that question. What has been
released is, however, of great interest in that it de-
scribes the history and training of the units and
headquarters involved at Son My, and mentions
and quotes from a number of the tactical and other
directives that are supposed to govern the conduct
of military operations in Vietnam.

* One of the officers cleared by General Seaman had invoked the privilege against self-incrimination while testifying before the Hébert subcommittee.

168 CRIME AND PUNISHMENT

On their face, as regards the laws of war, the directives are virtually impeccable. United States forces observe the Geneva conventions, and all military personnel are to be adequately indoctrinated in their provisions. All troops arriving in Vietnam are to receive "information cards," covering treatment of "The Enemy in Your Hands," and stressing "humanitarian treatment and respect for the Vietnamese people." The "Rules of Engagement" issued by the American commander in Vietnam, then Gen. William Westmoreland, instructed the troops to "use your fire power with care and discrimination, particularly in populated areas." Another directive stipulated that fire power should be so used as to avoid "incidents involving friendly forces, noncombatants, and damage to civilian property." Directly pertinent to Son My was the directive on minimization of civilian casualties, which called for protection of the inhabitant "whether at any one time he lives in a VC or GVN [Government of Vietnam] controlled hamlet," since whether it is the one or the other may well depend "to a large extent upon factors and forces beyond his control." The instructions issued by the headquarters of the 11th Brigade were generally in line with these directives.

But of course the question remains whether the picture painted by these directives bears any resemblance to the face of war in Vietnam, and on this score, once again, the Peers report as published is silent. Of what use is an hour or two of lectures on the Geneva Conventions if the soldier sent into combat sees them flouted on every side? How does the admonition to the Air Force square with the

CRIME AND PUNISHMENT 169

observations of Jonathan Schell on the way in
which tactical air power is actually used, or with
the Marine "ultimatum" that he quotes? How "real"
do the instructions to the ground troops appear in
the light of the lieutenants' testimony at the Duffy
trial, of the "mere gook" rule described by the Army
lawyers, or of the Army major's remark after the de-
struction of Ben Tre, with heavy loss of civilian life:
"It was necessary to destroy the town to save it"?⁸

Despite the careful wording of the orders and the
optimistic releases from the Pentagon about "paci-
fication," virtually all observers report death, destruc-
tion and troop attitudes that indicate that the re-
straint called for by the orders is not exercised.
Shortly after the Son My disclosures, four sergeants
in Vietnam wrote a letter expressing hearty ap-
proval:⁹ "You know this is a VC village, they are
the enemy, they are a part of the enemy's war
apparatus. Our job is to destroy the enemy, so kill
them . . . I want to come home alive, if I must kill
old men, women or children to make myself a little
safer, I'll do it without hesitation." One may in-
deed sympathize with the desire to "come home
alive," but if that aim now requires the slaughter
of all the Vietnamese who might be sympathetic to
the Vietcong, then all our talk of "pacification," to
say nothing of the Hague Conventions, is the
sheerest hypocrisy, and we had better acknowledge
at once that we are prepared to do what we hanged
and imprisoned Japanese and German generals for
doing.

The letter of the four sergeants, of course, does
not embody Army policy, but it is indicative of

170 CRIME AND PUNISHMENT

troop attitudes that the Army has allowed to de-
velop and, alas, in many cases to prevail. The atti-
tudes themselves are a natural product of the sur-
roundings and nature of the war. The Vietcong do
infiltrate and dominate the villages, and depend
on the rural population for both support and con-
cealment, and many of the villagers cooperate with
them, whether out of fear or favor. After a few air
strikes and "zippo raids" the villagers have less rea-
son than before to like Americans, and so distrust
soon turns to hate, as Richard Hammer has so com-
pellingly explained:

Pretty soon you get to hate all these people. You get to fear them, too. They're all out for your ass one way or another, out to take you for everything you've got. You don't know which ones are your enemies and which ones are your friends. So you begin to think that they're all your enemies. And that all of them are something not quite human, some kind of lower order of creature. You give them names to depersonalize them, to categorize them as you've become convinced they ought to be categorized. They become dinks and slopes and slants and gooks, and you begin to say, and believe, "The only good dink is a dead dink." You echo the comments of your buddies that, "One million of them ain't worth one of us. We should blow up all those slant-eyed bastards."¹⁰

Other witnesses tell much the same story: retired
Marine Colonels James A. Donovan and William

CRIME AND PUNISHMENT 171

R. Corson; Dr. Robert Jay Lifton of Yale; Dr. Gordon Livingston, a graduate of West Point and Johns Hopkins who served as a major in Vietnam. "No one has any feelings for the Vietnamese," a Texas private told Jonathan Schell. "The trouble is no one sees the Vietnamese as people. They're not people. Therefore it doesn't matter what you do to them." These attitudes are often aggravated by atrocious conduct of the Vietcong; Son My pales into numerical insignificance beside the massacre of thousands in Hue during the Tet offensive, when the Vietcong also overran Quang Ngai and raced through the hospital shooting doctors, nurses and bed-ridden patients. "One tends not to want to be too compassionate in dealing with an enemy like that," a soldier told William Beecher of The New York Times.¹¹

If these observers are not to be trusted, there remains the record of what has happened. Perhaps the Department of Defense has accurate totals of South Vietnamese civilians killed, maimed and made homeless by the war, but probably much of this misery has remained untabulated and is known only to the victims. Early in 1968, the late Senator Robert Kennedy stated that our population transfers, village destruction, and defoliation had created two million refugees, in a country of sixteen million people. A year later Professor Gabriel Kolko of Buffalo put the figure at 3,153,000, apparently based on evidence given in hearings conducted by the Senate Judiciary Committee.¹² The American Friends Service Committee estimates that some 150,000 civilians have been killed annually by com-

172 CRIME AND PUNISHMENT

bat operations. The Saigon Government reported 26,000 civilians killed and 74,000 wounded during 1967 in the regions it controlled. To be sure, some of these were killed by the Vietcong, but the disparity of fire power as between the two sides, and American monopoly in the air, make it a certainty that we are responsible for the greater part of the civilian casualties.¹³

Whether these figures are double or half the actuality is not of much legal or moral significance. As Colonel Donovan reminds us,¹⁴ those "who talk about the massacre of South Vietnamese that may happen at some future date if our troops leave the battlefield are apparently oblivious to the fact that a massacre of the Vietnamese people has been going on for five years, and much of the bloodshed has resulted from U.S. fire power."

The Army leadership can hardly have been blind to the probable consequences to civilians of a massive employment of American troops in Vietnam to engage in counterinsurgent operations. Indeed, General Peers called attention in his report to the dangers to noncombatants from "frequent employment of massive fire power" and from "the intermingling of the nonuniformed foe and the populace," and declared that: "Early in the conflict, these factors and many others associated with this unique war caused great concern at the highest levels for the protection of noncombatants and the minimization of casualties to those persons not directly involved." But how did this concern manifest itself, other than in the bland language of the various directives and "rules of engagement"?

CRIME AND PUNISHMENT 173

We may pass until later the question whether heavy fire power should have been used at all. Assuming that decision to have been made, there is no gainsaying the difficulties that the American command faced in achieving a "minimization" of civilian casualties and maintaining a humane and considerate attitude, among the troops. "There are no agreed 'rules of land warfare' between antagonists . . . when one . . . is a regular force . . . and the other includes old men, women, and children, as well as guerrilla troops," writes Col. William Corson. "And it is doubtful such rules can even be written. However, lacking such rules, if the United States is to avoid the moral and legal dilemmas associated with brutality in warfare, not only the U.S. fighting man, but the entire American society must have a thorough knowledge of the end the United States has in view . . ."¹⁵

Neither the "fighting man" nor "American society" has had any such understanding, and what is far worse, neither has our political and military leadership, for such an understanding would have revealed the unsuitability of zippo raids and free-fire zones as measures to "pacify" the countryside. Still, assuming that fire power is envisaged as playing a major role in the counterinsurgency warfare, then it is plain that certain accompanying measures are urgently required to "minimize" the inevitably destructive consequences.

Before embarking on a counterinsurgency war in Indochina, for example, some of the staff planners might well have cast a glance across the South China Sea to the Philippines, where we fought a counterinsurgency campaign 70 years ago.

174 CRIME AND PUNISHMENT

Damn, damn, damn the Filipinos,
Civilize them with a Krag

sang the soldiers in 1900, as they hunted Emilio Aguinaldo's irregulars, and today's soldier songs in Vietnam, as reported by Jonathan Schell, are redolent of the same sort of "humor."* When east and west meet in such unpleasant circumstances, racial slurs and scorns are inevitable, and probably "slope" and "dink" would have become standard Army vocabulary under the best of conditions.

Given the circumstances and purposes of the war, however, it should have been a matter of the highest priority to insure, by indoctrination and subsequent policing, that the troops should treat the Vietnamese as human beings with lives worth preserving. Unfortunately, feelings of racial superiority are not confined to enlisted men, and it is highly probable that many officers have a "mere gook rule" in the back of their minds when they order an air strike or mark out a free-fire zone. In any event, it is all too clear that the Army's attitude and performance in this area have been woefully inadequate.

American military and economic missions had been in Indochina since the end of the Second World War, and by the time President Johnson took office there were already some 15,000 military personnel in South Vietnam. It is difficult, therefore,

* The "Filipino" song was sung to the Civil War tune "Tramp, tramp, Tramp, the Boys are Marching." The Krag Jorgensen rifle was the standard infantry weapon at the turn of the century. One of the Schell-reported lyrics:
Bomb the schools and churches,
Bomb the rice fields, too,
Show the children in the courtyards
What napalm can do.

CRIME AND PUNISHMENT 175

to attribute the blunders that accompanied the massive build-up to lack of information. We knew the size, density of population and terrain of the country, and it must have been apparent that however good the aim and intention, the bullets, bombs and shells were going to hit a lot of buildings and people that were simply unfortunate enough to be there. Once the population transfers and search-and-destroy missions became standard practice, the prospect of heavy civilian casualties, and masses of refugees, became a certainty. Bad enough that was, but far worse the failure to provide sufficient housing and hospitals to relieve the suffering we caused, and soon the point was reached where large operations were designed so as not to "generate" refugees for lack of a place to put them.

I have stressed, and I believe rightly, the maddening difficulties and dangers that troops and commanders alike—soldiers at all levels—faced in the conditions, some of our own making, that have developed in South Vietnam as our commitment deepened. For the lower ranks, these circumstances must count powerfully in mitigation of their culpability. But in these confused, complex, and shifting circumstances, the responsibility of the higher officers for training, doctrine and practice is all the greater.

During the Second World War, the German Army in occupied Europe faced conditions that, in some countries, were not totally dissimilar to those prevailing in Vietnam, and had a like mission of "pacification." There, too, villages were destroyed and the inhabitants killed, and after the war a number of field marshals and generals implicated in the

176 CRIME AND PUNISHMENT

actions were brought to trial at Nuremberg in the so-called "High Command case." In summing up at the close of the trial, the prosecution dealt with this same issue of comparative responsibility as between the troops and their leaders:

> Somewhere, there is unmitigated responsibility for these atrocities. Is it to be borne by the troops? Is it to be borne primarily by the hundreds of subordinates who played a minor role in this pattern of crime? We think it is clear that that is not where the deepest responsibility lies. Men in the mass, particularly when organized and disciplined in armies, must be expected to yield to prestige, authority, the power of example, and soldiers are bound to be powerfully influenced by the examples set by their commanders. That is why . . . the only way in which the behavior of the German troops in the recent war can be made comprehensible as the behavior of human beings is by a full exposure of the criminal doctrines and orders which were pressed on them from above by these defendants and others. Who could the German Army look to, other than von Leeb and the senior field marshals, to safeguard its standards of conduct and prevent their disintegration? If a decision is to be rendered here which may perhaps help to prevent the repetition of such events, it is important above all else that responsibility be fixed where it truly belongs. Mitigation should be reserved for those upon whom superior orders are pressed down, and

CRIME AND PUNISHMENT 177

who lack the means to influence general stand-
ards of behavior. It is not, we submit, available
to the commander who participates in bringing
the criminal pressures to bear, and whose re-
sponsibility it is to insure the preservation of
honorable military traditions.¹⁶

When General Peers submitted his report charg-
ing several high-ranking officers with dereliction of
duty in covering up Son My, the press reported
sharp controversy in military circles on whether
the airing of dirty linen would be "good" or "bad"
for the Army as an institution. Of course, both Son
My and the cover-up were indicative of serious
weaknesses, but once Son My had happened, its
exposure was not merely "good" but essential to the
integrity of the Army's leadership. What officer with
any respect or sense for the values of the military
profession could serve with pride in an organiza-
tion where serious crime in the lower ranks is
buried in the files on orders from above? The bury-
ing is itself an offense, known to the law as "mis-
prision of felony," and Son My could not have
been permanently covered up without infecting the
higher reaches of the Army leadership with crim-
inality.

The trouble now is that the uncovering is not
being carried nearly far enough. General Peers was
directed to investigate only what happened after
Son My—specifically "the adequacy of . . . inves-
tigations or inquiries and subsequent reviews and
reports within the chain of command," and "whether
any suppression or withholding of information by
persons involved in the incident had taken place."

178 CRIME AND PUNISHMENT

But so far as is publicly known, the Army has un-
dertaken no general investigation of the killings
themselves, to determine the level of responsibility
for the conditions that gave rise to Son My or
the many similar though smaller incidents.

Now the Son My court-martial proceedings carry
the prospect of inquiry into those ominous problems
—into body counts, and zippo raids, and free-fire
zones, and “mere gook rules.” The motive force will
be the defendants’ effort to shake off culpability
either by showing that what they did was not
“wrong,” however unlawful, or that if wrong, others
more highly placed were primarily responsible.
Such an inquiry is unlikely to be either complete
or dispassionate.

"Regardless of the outcome of . . . the My Lai courts-martial and other legal actions," Col. William Corson has written, "the point remains that American judgment as to the effective prosecution of the war was faulty from beginning to end and that the atrocities, alleged or otherwise, are a result of a failure of judgment, not criminal behavior." Colonel Corson overlooks, I fear, that negligent homicide is generally a crime of bad judgment rather than evil intent. Perhaps he is right in the strictly causal sense that if there had been no failure of judgment, the occasion for criminal conduct would not have arisen. The Germans in occupied Europe made gross errors of judgment which no doubt created the conditions in which the slaughter of the inhabitants of Klissura occurred, but that did not make the killings any the less criminal.

CRIME AND PUNISHMENT 179

Still, there is a real question how far the criminal
process is appropriate as a scale in which to weigh
the responsibility of those in high authority for the
crimes committed in Vietnam. The pages of The
Washington Monthly and the New York Village
Voice have recently been the vehicle for a running
debate on the subject between Townsend Hoopes,
former Under Secretary of the Air Force and au-
thor of an interesting account of top-level policy
formulation from 1965 to 1969, and two newspaper
reporters, Geoffrey Cowan and Judith Coburn.17
The reporters thought that if Justice Jackson's
promise at Nuremberg were to be kept, President
Johnson and his associates ought to be brought be-
fore a like bar of justice; Mr. Hoopes's reaction to
this, not unnaturally, was one of dismay. The an-
tagonists never squarely locked horns, so that not
even the most dispassionate judge could award the
laurels of victory to either side. Mr. Hoopes's de-
fense, nonetheless, was something less than satis-
fying, for the burden of it was that American lead-
ers are intrinsically "good" men. "Lyndon Johnson,
though disturbingly volatile, was not in his worst
moments an evil man in the Hitlerian sense," Mr.
Hoopes declared, while "his principal advisers
were, almost uniformly, those considered to be
among the ablest, the best, the most humane and
liberal men that could be found for public trust."

That is what trial lawyers call "character testi-
mony." Whatever its value in a fraud or perjury
case, it is not very relevant to a determination
whether certain proven conduct is criminal, and
whether the defendant was implicated. How much
the President and his close advisers in the White

ELC

180 CRIME AND PUNISHMENT

House, Pentagon and Foggy Bottom knew about the volume and cause of civilian casualties in Vietnam, and the physical devastation of the country-side, is speculative. Something was known, for the late John McNaughton (then Assistant Secretary of Defense) returned from the White House one day in 1967 with the message that "We seem to be proceeding on the assumption that the way to eradicate the Vietcong is to destroy all the village structures, defoliate all the jungles, and then cover the entire surface of South Vietnam with asphalt."¹⁸

Whatever the limits and standards of culpability for civilians in Washington, the proximity and immediate authority of the military commanders ties the burden of responsibility much more tightly to their shoulders. The divisional and other commands in Quang Ngai Province, within which Son My is situated and where civilian casualties and physical destruction have been especially heavy, were subordinated to the Third Marine Amphibious Force, commanded by Lieut. Gen. Robert E. Cushman, who in turn was directly responsible to the top Army headquarters in Vietnam, the Military Assistance Command Vietnam (MACV). At the time of Son My, Gen. William Westmoreland headed MACV, with Gen. Creighton Abrams as his deputy, and Lieut. Gen. William B. Rossen in charge of a headquarters of MACV in northern South Vietnam. From MACV, the chain of command runs through the Commander-in-Chief Pacific (Adm. Ulysses Grant Sharp Jr.) to the Chiefs of Staff in Washington.

It is on these officers that command responsibil-

CRIME AND PUNISHMENT 181

ity for the conduct of operations has lain. From General Westmoreland down they were more or less constantly in Vietnam, and splendidly equipped with helicopters and other aircraft, which gave them a degree of mobility unprecedented in earlier wars, and consequently endowed them with every opportunity to keep the course of the fighting and its consequences under close and constant observation. Communications were generally rapid and efficient, so that the flow of information and orders was unimpeded.

These circumstances are in sharp contrast to those that confronted General Yamashita in 1944 and 1945, with his forces reeling back in disarray before the oncoming American military powerhouse. For failure to control his troops so as to prevent the atrocities they committed, Brig. Gens. Egbert F. Bullene and Morris Handwerk and Maj. Gens. James A. Lester, Leo Donovan and Russel B. Reynolds found him guilty of violating the laws of war and sentenced him to death by hanging. The sentence was first confirmed by the area commander, Lieut. Gen. William D. Styer, and then by Gen. Douglas MacArthur, as Commander-in-Chief, United States Army Forces in the Pacific. In his statement on the confirmation, General MacArthur said of Yamashita:

> It is not easy for me to pass penal judgment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain search for some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record been spread to pub-

182 CRIME AND PUNISHMENT

lic gaze. Revolting as this may be in itself, it
pales before the sinister and far-reaching im-
plication thereby attached to the profession of
arms. . . . This officer, of proven field merit,
entrusted with high command involving au-
thority adequate to responsibility, has failed
this irrevocable standard; has failed his duty to
his troops, to his country, to his enemy, to man-
kind; has failed utterly his soldier faith. The
transgressions resulting therefrom as revealed
by the trial are a blot upon the military profes-
sion, a stain upon civilization and constitute a
memory of shame and dishonor that can never
be forgotten . . .

I approve the findings and sentence of the
Commission and direct the Commanding Gen-
eral, Army Forces in the Western Pacific, to
execute the judgment upon the defendant,
stripped of uniform, decorations and other ap-
purtenances signifying membership in the mili-
tary profession.

Whether or not individuals are held to criminal
account is perhaps not the most important question
posed by the Vietnam war today. But the Son My
courts-martial are shaping the question for us, and
they can not be fairly determined without full in-
quiry into the higher responsibilities. Little as the
leaders of the Army seem to realize it, this is the only
road to the Army's salvation, for its moral health
will not be recovered until its leaders are willing to
scrutinize their behavior by the same standards that
their revered predecessors applied to Tomayuki
Yamashita 25 years ago.

8 War and
Peace

WHY WE ARE IN VIETNAM is today a question of mainly historical interest. We *are* there, for better or for worse, and we must deal with the situation that exists.” So read the opening words of Arthur M. Schlesinger Jr.’s 1967 study of American involvement in Vietnam.¹ But the reasons why we are in Vietnam are part of “the situation that exists,” and the question—what those reasons are—is both a moral and a practical issue of great moment.

Consider the conflicting versions of our Vietnam purposes even within the White House circle. Early in 1967 Walt W. Rostow, then a close adviser to President Johnson, told a meeting of college student editors that our “intervention had been based largely on obligations under SEATO to resist aggression.” His statement was immediately and publicly

184 WAR AND PEACE

challenged by Richard N. Goodwin, a former as-
sistant to Presidents Kennedy and Johnson, who de-
clared that the United States had not acted under
treaty obligations, but rather "because, in the judg-
ment of the Presidents, American power and inter-
ests demanded it."

The same contrast is manifest in the explanations
of United States policy given by Eugene V. Rostow,
Walt's brother and former Under Secretary of State,
in the course of a long interview with William
Whitworth of the New Yorker.² Speaking of Ameri-
can policy in India and South Vietnam, Rostow
declared that "our interest is not to protect democ-
racy as such but to deter, prevent, or defeat ag-
gression." Then at another point he described the
motivation of our intervention in Vietnam as based
on the Government's being concerned about "the
long-range impact a withdrawal would have on
Japanese policy," and being "afraid that the enor-
mous masses and the geographical and strategic
areas of that region will fall into the hands of hos-
tile or potentially hostile powers."

In an earlier chapter, I have stated my opinion
that the courts cannot reasonably be expected to
pass judgment on the legality of our Vietnam poli-
cies. But to say that the judges should not answer
the question is not to deny the reality and signifi-
cance of the question itself. Dean Rusk had no war-
rant of authority to determine for all men and all
time that North Vietnam committed aggression
against South Vietnam. It may be unlikely that
our leaders will be called upon to answer at the bar
of some future international tribunal, but there is

WAR AND PEACE 185

also the bar of history. As a nation dedicated to
liberty, justice and peace on earth it is surely in-
cumbent on us to engage in hard self-scrutiny, and
conform our actions, as far as humanly possible, to
the principles we profess.

Are we, then, acting in Vietnam as a global po-
liceman, under the Nuremberg principles and the
United Nations Charter, to "deter, prevent or de-
feat aggression"? Or are we promoting "American
power and interests" in Asia? Enormously different
consequences would flow from the dominance of
one or the other of these purposes—differences in
the suitability of particular military tactics, in the
weight to be given to the attitude of other nations
toward our actions, and in the terms of an accept-
able armistice or peace settlement.

If preservation of the American position in
Southeast Asia is the governing motive, then the
question whether North or South Vietnam "struck
the first blow" is of only collateral significance;
whichever was the more to blame, America would
be equally disadvantaged by a victory for the
North. Essentially, we would be back to 19th cen-
tury notions of legitimacy, when Lieber could de-
scribe war as an "acknowledged . . . means to ob-
tain great ends of state." Perhaps that is still our
international ethic. The Bay of Pigs was an unsuc-
cessful but hardly a defensive operation; it was our
counterpart to the Anglo-French fiasco at Suez.
Nevertheless, one may suspect that in both cases the
failure was largely due to the attacker's feelings of
guilt, which inhibited us, as it did the British and
French, from striking hard enough to achieve a
prompt *fait accompli*.

186 WAR AND PEACE

Some of our other military ventures, especially in
this hemisphere, have been less than simon-pure
in terms of Nuremberg principles. Nevertheless,
there is a deeply idealistic strain in the American
interventionist tradition. In 1898, President Mc-
Kinley justified the war against Spain: "In the cause
of humanity and to put an end to the barbarities,
bloodshed, starvation, and horrible miseries now ex-
isting" in Cuba. Thereafter, the United States joined
with other governments in denouncing the Ru-
manian and Russian pogroms, especially at Kishi-
nev, and the Turkish massacres of Armenians in
1915.

The idea that a government's treatment of its own
nationals can be so contrary to civilized standards
as to constitute an international crime, indeed, lies
at the root of the "crimes against humanity" con-
cept of the London Charter, and of the Genocide
Convention.³ And it was in this spirit that President
Eisenhower pledged support to South Vietnam in
1954, telling President Ngo Dinh Diem that it was
our purpose to "discourage any who might wish to
impose a foreign ideology on your free people." In
fact, the people were certainly not as "free" as the
President thought; nevertheless, as Arthur Schles-
inger puts it, the mood in which the Government
started into Vietnam was "essentially moralistic."

To be sure, idealistic and selfish motives are not
mutually exclusive, and sometimes work in con-
junction. The North Korean attack against South
Korea in 1950 was a far greater threat to Japan and
the general American position in Asia than ever was
Ho Chi Minh, and very likely the United States

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would have intervened whatever the Korean rights and wrongs might have been. In fact it was a clear case of aggression by North Korea, and the United Nations soon put its stamp of approval on the American action, which thus became a multilateral operation under an umbrella of international consensus.

I have already indicated my belief that one of the difficulties about applying the Nuremberg "crimes against peace" standards to our Vietnam venture is the diversity of impressions and motives that governed the many men who have influenced the course of the operation over the 16 years that it has now been under way. Things may not have looked the same to President Johnson in 1964 as they had to Eisenhower 10 years earlier; if, as has been reported, Johnson was strongly moved by a desire not to be "the first American President to lose a war,"⁴ one can only say that this was hardly a worthy reaction to a problem of the greatest moment to the nation, and would not be a strong defense in any forum.

Lacking the documents and testimony to establish the personal intentions of the movers and shakers in Washington, we are thrown back to the record of what the United States Government has actually done in Vietnam. On that record, it is difficult not to reach a harsh verdict. If the primary purpose had remained, as Eisenhower said, to protect South Vietnam from the imposition of a "foreign ideology" or, as the Rostow brothers tell us, to deter aggression, it is inconceivable that our conduct of military operations should have taken the course

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that it has. Whatever peace-keeping and protective
intentions may have governed our initial involve-
ment in Vietnam have by now been so completely
submerged under the avalanche of death and de-
struction that they no longer are credible descrip-
tions of the operation as a whole. Colonel Corson
has summed up the consequences in a mordant
pun: The United States in Vietnam has become
an "international lethal aid society."

Why did things go so wrong? Some say it is be-
cause our leaders were war criminals. Whether or
not that be so, it is an unsatisfactory answer in
terms of causation, for it assumes that the leaders
wanted things to turn out as they have, whereas
in fact it is plain that those responsible are exceed-
ingly dissatisfied with the present consequences
of their policies. Surely Lyndon Johnson would
never have done what he did in 1964 and 1965 if he
could have foreseen the results in 1968.

I think that Colonel Corson is much closer to the
truth—or truths—in saying that “American judg-
ment as to the effective prosecution of the war was
faulty from beginning to end”; that we became
“over-involved militarily in the armed forces of
the present, under-involved politically in the human
forces of the future”; and that in the upshot our
political and military leaders alike lost sight of the
old law of war that “it is a mistake, illegal and
immoral, to kill people without clear military ad-
vantage in a war.”

That is more enlightening on the "how" than the
"why" we got off course. On the second question

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the record is still incomplete and cloudy, but the accounts and comments of those on the edge of the inner circle strongly indicate that there was a misfit between ends and means; that the military leaders never grasped the essentially political aims of intervention, and the political leaders neglected or were unable to police the means that the military adopted to fulfill what they conceived to be their mission.

If the objective of our Vietnam policy be stated over-simply as "to stop Communism at the 17th parallel," there were at most two ways to do that. The first, which has been our stated policy, is to gain and hold the political allegiance of the South Vietnamese to a non-Communist government, while giving them defensive assistance against any military means used by the North. The second was to ignore the South Vietnamese people, treat South Vietnam as a battlefield, and kill all the North Vietnamese or Vietcong found on or moving toward the battlefield. The sad story of America's venture in Vietnam is that the military means rapidly submerged the political ends, and the first method soon gave way to the second.

Whether or not the first method could have been successfully employed is and will remain an unanswered question. After the Second World War it worked well for us in Greece, but Vietnam is quite another place. After Ho Chi Minh's long and eventually successful struggle against the French, it is at least doubtful that any Western power—perhaps any outside power—could effectively participate in Vietnam's internecine troubles. The

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United States had few scholars or diplomats expert in Vietnamese institutions. Still, there were those who thought in these terms, including Roger Hilsman and Walt Rostow(!) who in 1962 "developed a cogent and comprehensive 'strategic concept for counterinsurgency' that emphasized . . . subordination of military actions to political purpose, and reliance on small scale counter guerrilla units, as opposed to conventional military formations."⁵

According to Townsend Hoopes, the Army was strongly opposed to these projects, and it is easy to see why: The regular armed services have no capacity for such undertakings. That being so, it was a possible conclusion that Vietnam was a good place for the Army to stay out of, and that was precisely the conclusion reached in 1954 by the Chief of Army Plans, Lieut. Gen. James M. Gavin. It was his opinion that "as a military operation Vietnam made no sense," because "unless the people of the country prefer the government supported by foreign troops to the guerrillas, the mere introduction of large numbers of ground troops with modern equipment would not resolve the military conflict."⁶

But what the Army and Air Force had, in great abundance, was mobility and firepower, and what they thought would be adequate manpower. Confronted with what appeared to be a deteriorating situation in South Vietnam, President Johnson and his advisers clutched for the means at hand without sufficiently considering their suitability for the end in view.

The bankruptcy of the firepower tactic did not go unobserved. "My feeling is that you could kill

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every Vietcong and North Vietnamese in South Vietnam and still lose the war,” said the commandant of the Marine Corps, Gen. Wallace M. Greene. “Unless we can make a success of the civic-action program, we are not going to achieve the objectives we have set.”⁷ But neither Pentagon nor White House gave heed. Townsend Hoopes remained uncertain whether President Johnson “never understood the incompatibility of Westmoreland’s ground strategy with his own stated political objective, i.e. to gain the political allegiance of the people of South Vietnam,” or whether “he regarded the political aim as mere words and the need for military victory as the only governing reality.”

However that may be, neither the President nor the Secretary of Defense, Robert McNamara, gave effective review to Westmoreland's operations. “The preferred military doctrine dictated the strategy, and the strategy determined the policy,” says Hoopes, adding that “during nearly three years of steadily rising combat and casualty levels, Washington did not seriously question or modify the Westmoreland strategy of attrition.” The Pentagon simply lost sight of “the truth that protection for the people against Vietcong terror had to be achieved by means that did not themselves alienate the people by causing heavy civilian casualties and wanton physical destruction.”⁸

By the summer of 1968, it had become painfully apparent that the Westmoreland firepower tactic, apart from the moral and legal aspects, was a mili-

192 WAR AND PEACE

tary failure. Heavy casualties had been inflicted on
the Vietcong, but they remained undefeated.
"There is considerable evidence," writes Gen. David
Shoup, retired commandant of the Marine Corps,
"that the National Liberation Front is in fact better
organized and enjoys greater loyalty among the
people of Vietnam than does the Saigon govern-
ment."

ment.”
In this costly miscalculation, the Pentagon lead-
ers were not only deaf to the warnings of General
Gavin and others, but also blind to the lessons of
recent military history. After the Second World
War, the Army embarked on an intensive study of
the German military record, presumably to see
what lessons could be learned. The lessons were
there, to be sure, but their meaning does not seem
to have fastened itself in the American military
mind.

Consider once again the massacre of Greek vil-
lagers at Klissura, described in an earlier chapter.¹⁰
When this incident became known to the German
civilian authorities in Greece, whose principal inter-
est was in pacification of the occupied country,
there was prompt and fiery protest to the German
commander-in-chief, Field Marshal Maximilian von
Weichs. The message came from Hermann Neu-
bacher, the Foreign Office Plenipotentiary in South-
east Europe:

> It is utter insanity to murder babies, children, women and old men because heavily armed Red bandits billeted themselves overnight, by force, in their houses, and because they killed two German soldiers near the vil-

(c) 1918

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lage. The political effect of this senseless blood
bath doubtlessly by far exceeds the effect of all
propaganda efforts in our fight against com-
munism.

No matter what the final result of the investi-
gation may be, the operation against Klissura
represents a severe transgression of existing
orders. The wonderful result of this heroic deed
is that babies are dead. But the partisans con-
tinue to live and they will again find quarters
by use of submachine guns in completely de-
fenseless villages. It is a further fact that it is
much more comfortable to shoot to death en-
tirely harmless women, children, and old men
than to pursue an armed band with a manly
desire for vengeance and to kill them to the
last man. The use of such methods must neces-
sarily lead to the demoralization of genuine
combat morale.¹¹

Ambassador Neubacher was not alone in his per-
ception of the self-defeating nature of such meas-
ures. In July, 1943, the Austrian General Edmund
von Glaise-Horstenau admonished the German Air
Force commanders in the Balkans that their reprisal
bombing raids on villages "forces additional people
into the woods and shakes confidence in the Ger-
man soldier of those parts of the population that
are friendly to us." From Serbia, a German Army
captain reported on the harmful effects of shooting
innocent persons:

> Above all, the psychological effect will
> be catastrophic. The residents of Kragujevac
> had hoped that the German Wehrmacht would

194 WAR AND PEACE

rid them of the Communist danger and that they would be aligned into the new framework of Europe. With the methods applied here we shall most certainly fail to win back the favorably inclined elements of the population. ... ¹²

Perhaps the most forceful denunciation of German “search-and-destroy” tactics came from a German civilian official in Belgrade a few months after the occupation of Yugoslavia began, when a German Army captain was killed by a “Communist” who “had been lying in ambush in the cornfield and fled through the corn to the woods after committing the deed.” In reprisal the Germans shot a number of nearby farmers, and then took more extensive measures, as described in the official's protest to the German commander in Serbia:

> ... In order to combat Communist operations which had got out of hand during the last few days, the German headquarters sent a motorized assault troop which is at present going through all the villages making arrests and, due to ignorance of the situation, is killing innocent men, women, and children. ...

The consequence of the procedure of the German assault troops will be that a large number of innocent people will be slaughtered and that the Communists in the woods not only will not be exterminated but will increase in numbers. Because many farmers, even entire villages—even though up to now they had no connection with the Communists—will flee into the woods only out of fear and will be re-

WAR AND PEACE 195

ceived there by the Communists. They will be
provided with arms and used for combat and
for open revolt against the German armed
forces. This insurrection will develop on a large
scale and will have incalculable and terrible
consequences for the entire population . . . ¹³

Now comparable reports are beginning to emerge
from Vietnam. Reprisal bombing attacks on vil-
lages have driven thousands of the inhabitants to
refugee camps, and subjected those who stay to a
fear-ridden existence. A report on refugees, done
in 1968 for the Rand Corporation, reveals that "ex-
cessive misdirected bombing" had made them hos-
tile to the Saigon Government, and served only to
"knock the underpinnings from efforts to gain the
support of the people."¹⁴ Two years later, as Ameri-
can soldiers moved into Cambodia, news corre-
spondents reported that "the pattern of Vietnam is
being repeated"; that the troops were under orders
to "burn everything," and that heavy bombing was
driving the inhabitants into the ranks of the Viet-
cong.¹⁵

And so in August, 1970, when newspaper head-
lines informed us "Americans in Vietnam Find
Themselves Hated," it should have come as no sur-
prise. "The B-52 bombing raids, the air strikes on
villages where there might have been Vietcong but
maybe not, the incidents of cruelty by United States
troops—all these things have made many Viet-
namese angry and outraged," wrote Gloria Emer-
son.¹⁶ "The Americans are hated now because they
have, for so long, told the Vietnamese how to win
the war. Despite such assurance, the war is a long

196 WAR AND PEACE

way from being won." Now it has come to the point
that Americans in Saigon can no longer walk safely
alone, and are "advised to travel in pairs."

In a recent television address on the war in
Southeast Asia, President Nixon coined the phrase
"pitiful, helpless giant," and hotly denied that the
United States, under his leadership, would play
such a part. Pitiful and helpless the nation is not,
but the course of events under the last three Presi-
dents raises painful doubts whether our conduct
as a nation may not have been arrogant and blind
—or at best one-eyed, seeing in only one direction,
and unable to perceive the lessons of the past or
the trends of the present.

If an effort be made to look beneath the orders
and operations and speeches and press releases for
some clues to understanding the Vietnam debacle,
then one must contemplate Vietnam not in isolation
but in the context of the times and the many other
failures and dangers that are unsettling the United
States today. Most of them, I believe, can be gath-
ered under the expression of "under-maintenance,"
caused by our unwillingness, despite enormous
material means, to invest the time, thought and
resources necessary to preserve the foundations
and basic services of society. Attention is given to
ever taller skyscrapers, supersonic airliners and
moon landings, while we pollute the air and water
and allow education, transportation, housing and
health to degenerate.

Despite the billions of dollars we have spent on
the Vietnam war and the incredible weight of ex-

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plosives dropped on that unhappy land, our failure
there is largely due to *under-maintenance*. The
point is implicit in the title of Jonathan Schell's
book—"*The Military Half*"—as explained in a con-
cluding passage:

Many optimistic Americans, including report-
ers as well as military men and civilian offi-
cials, tended to set off the destruction caused
by the military effort against the construction
resulting from the civil-affairs effort, seeing
the two results as separate but balanced
"sides" of the war; and, looking at our com-
mitment of men and materials, they were often
favorably impressed with the size of the con-
structive effort, almost as though it were being
carried out in one country while the military
effort was being carried out in another. But,
of course, the two programs were being carried
out in the same provinces and the same villages,
and the people who received the allotments of
rice were the same people whose villages had
been destroyed by bombs. . . . Many of the
civil-affairs officials were working exhausting-
long hours and doing the best job they could
with their limited time and resources, and
they could not see why the people should com-
plain and expect more than they were getting.
Many military men, for their part, were loyal
only to their duty—that of conducting military
operations. Having efficiently carried out the
"military half," they saw it as the responsi-
bility of the Vietnamese government and of the