Nuremberg and Viet Nam

It seemed at first a pedestrian case ambling toward a predictable conclusion. An obscure physician from Brooklyn, drafted into the Army and clearly a military misfit, was haled before a general court-martial, charged with preaching antiwar dogma to enlisted men and refusing to teach them dermatology as he had been ordered. But last week the case of Captain Howard Levy took on unexpected significance both as a precedent in military law and as a chapter in the worldwide debate over the Vietnamese war. For the first time in a U.S. military court, the war-crimes doctrine of Nuernberg was allowed as a defense strategy; those who charge the U.S. with heinous atrocities were invited to put up evidence.

Colonel Earl Brown, the law officer, or presiding official, at the Fort Jackson, S.C., trial, observed matter-of-factly: "My research discloses the Nuernberg trials involve a rule that a soldier must refuse an order to commit war crimes." If it can be shown that by obeying the order Levy was abetting the commission of atrocities, Brown said, the major charge against him would be dropped. The defense, led by Charles Morgan Jr., southeastern regional director of the American Civil Liberties Union, was so astonished at the ruling that war-crimes evidence would be heard that it had none to offer immediately. Instead Morgan won a recess until this week and called on antiwar propagandists to volunteer proof of his statement: "I think we can prove there is a policy of eradication of the Vietnamese people who won't support our side."

Lack of WACs. Morgan sounded as extreme as his client. According to the charges against Levy and the testimony of some of the 27 prosecution witnesses, the doctor told GIs that he would refuse to go to Viet Nam if ordered, that Negro soldiers especially should refuse to fight there, that Lyndon Johnson was like Adolf Hitler and that Special Forces men--whom he was ordered to instruct-- "are liars and thieves and killers of peasants and murderers of women and children." To teach the Green Berets how to treat skin diseases of Vietnamese peasants, Levy said, would "prostitute" his profession. Therefore he defied the order.

To this the defense offered no factual opposition. Morgan argued that the case should be thrown out on a variety of grounds, ranging from constitutional guarantees of free speech to the fact that WACs are excluded from court-martial panels. "It is the right, indeed the duty," said Morgan, "of all Americans to think, to dream and to talk." However, the most serious charge against Levy is that he refused to carry out a direct order given in writing.

Somebody Got Mad. Here the dispute is over the order's legality. Captain Richard Shusterman, the senior prosecutor, contended that no man in uniform can pass on the "wisdom and propriety" of his commanding officers' orders. Morgan countered that since Nuernberg, "all men are responsible for their acts." He also called the order illegal and got another Army doctor to testify that he, too, would refuse to train Special Forces troops in medical skills on the grounds that Special Forces men, unlike other Army medics, are fighters first and corpsmen second. Morgan also argued that Levy's views had been well known since his induction two years ago. "One day," said Morgan, "somebody got mad and decided to get Howard Levy."

If so, Levy, 30, had given some provocation. He describes himself as a "disruptive person" who has no business in the Army. To prove it he caused a flap by refusing to join the Fort Jackson officers club. Later his commanding officer reprimanded him for minor infractions such as appearing unkempt, his hair too long, his insignia improperly affixed. One witness testified that Levy told him he would rather go to Leavenworth than Viet Nam. The Army is not disposed to offer a choice; the charges against Levy could get him eleven years in jail.

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