Men at War

During his drawn-out court-martial on charges of military misconduct, Captain Howard Brett Levy and his attorney have spiced the otherwise routine trial with dark hints that U.S. Special Forces in Viet Nam were guilty of war crimes as heinous as any condemned at Nurnberg two decades ago (TIME, May 26). Last week, in an unexpectedly bold move, the Army court allowed Levy's attorney to wage the first "Nurnberg defense" in a U.S. court-martial. To the surprise of almost no one, it failed dismally.

Despite detailed questioning of three witnesses in the Fort Jackson, S.C., courtroom, Attorney Charles Morgan Jr. of the American Civil Liberties Union was unable to find any evidence that Green Beret men had tortured or even beaten Viet Cong. What they had to tell were gory tales about men at war.

Donald W. Duncan, 37, a former

Green Beret master sergeant who is now "military editor" of muckraking Ramparts magazine, testified that Vietnamese irregulars, usually Montagnard tribesmen, cut off the right ears of slain enemies to collect up to $10 per capita bounty from Special Forces. "Cutting off an ear," he explained, "was considered proof that you had killed a man." It was a gruesome practice indulged in by irregular troops--not the regular Vietnamese army. Asked about Vietnamese mistreatment of prisoners, Duncan said: "Beatings and general brutality were the order of the day. Normally, when it started, you would turn around and light a cigarette."

While out on a patrol, Duncan testified, he radioed back to ask what he should do with two captured Viet Cong whose presence interfered with his mission. "Get rid of them," came the answer. The order meant, said Duncan, "to shoot 'em or stick a knife in 'em."

He ignored it, but--according to Duncan--when he returned to base he was reprimanded by his commander.

Army Captain Peter G. Bourne recalled seeing a Viet Cong prisoner bound and left in a burning village by Vietnamese troops. When he asked a Vietnamese lieutenant about the man, he was told: "Oh, he's dead." Bourne said he rescued the man, only to find the "Vietnamese very incensed about it. I talked to our captain about it, but he said, 'Don't rock the boat,' or something of that sort. He said this is too sensitive a political situation."

A Way of Life. Author Robin Moore, who lived with the Special Forces in Viet Nam while doing research for his bestselling book The Green Berets, said that U.S. troopers were helpless to prevent the Vietnamese from committing atrocities. Nevertheless, he added, "we have greatly increased our own casualties in an effort not to make a move that would kill civilians. I've seen what happens to Americans who get captured by the Viet Cong."

Army Colonel Earl V. Brown, the unflappable presiding law officer in charge of the trial, heard the defense evidence out of the presence of the ten-officer court. He had ruled that if it could be proved that Green Berets were war criminals, the court would consider exonerating Levy, 30, a Brooklyn dermatologist, of the most serious of the five charges against him--refusal to obey orders to teach simple medical techniques to Special Forces men on their way to Viet Nam because they were "robbers and killers." Brown's ruling: "There is no evidence that would render this order to train aidmen illegal on the grounds that eventually these men would become engaged in war crimes or in some way prostitute their medical training by employing it in crimes against humanity."

That decision puts Levy's court-martial right back where it began--a conventional hearing that could end with the self-proclaimed military misfit sentenced to eleven years in prison.

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