Of Guilt and Precedent

The man who articulated an outraged world's condemnation in the war-crime trials at the end of World War II has turned the doctrine of command responsibility directly on America's former commander in Viet Nam, General William C. Westmoreland, now Army Chief of Staff. Telford Taylor, 62, who was the chief U.S. prosecutor at Nuremberg, first adumbrated his theses--without naming names--in his book Nuremberg and Vietnam: an American Tragedy (TIME, Nov. 23, 1970). Last week, on Dick Cavett's TV talk show and in talks with newsmen later, he said that Westmoreland could be found guilty of Viet Nam war crimes if he were to be tried by the same standard under which the U.S. hanged Japanese General Tomayuki Yamashita.

Yamashita was judged guilty and responsible for atrocities committed by his Japanese troops in the Philippines, even though he had no regular communications with his men in the field. Westmoreland was in a better position than Yamashita to prevent a My Lai: he presided over the most sophisticated and continuous net of communications ever available to a military commander.

The Army has already weighed Westmoreland's responsibility for My Lai and found him guiltless. That is hardly surprising, since it is one thing for the victor to judge the vanquished and quite another, realistically, for an army and a nation still locked in combat to judge its own too harshly.

In a narrow legal sense it is very difficult to fault Taylor's logic and his matching of painful precedent and present tragedy. Perhaps the real question is whether Yamashita, whose case was quite different from the purposeful genocide carried out by Nazi war criminals, should have been found guilty and hanged. Only if the principle applied to him in 1945 can be demonstrated to have been wrong is it possible to argue effectively that it would be wrong to apply it now. It is a dilemma that, however argued, cannot be resolved in a fashion that is very comforting to thoughtful Americans.

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