Must We Hang Nixon Too?

...This officer has failed his duty to his troops, to his country, to his enemy, and to mankind," MacArthur said...

...On the contrary, our precedent supplies additional impetus for their fate...

...The fact that these high-ranking men were nowhere near Mylai, the fact that they knew nothing about what was going on there, the fact that it was impossible for them to do anything about it if they did know—all this was true of Japanese General Tomoyuki Yamashita as well...

...The U.S...

...The Japanese soldiers' reaction was similar to the GIs' view of the Viet-cong...

...Do we indeed hold a Commander-in-Chief and his staff accountable under a law we made...

...We have defeated and crushed your forces...

...The transgressions are a stain upon civilization and constitute a memory of shame and dishonor that can never be forgotten...

...The pilot in the B52 who flew over these villages and pressed the button that resulted in more indiscriminate killing of civilians, including defenseless women and children, created the same result as did the soldiers who pulled the triggers in front of their victims...

...Its deterrent effect is nil...

...Exhibit E, exhibit F, exhibit G—and on and on...

...Somewhere along the line he was in command...

...After President Truman refused to intervene, five-star General Douglas MacArthur employed his own brand of rhetoric in ordering the execution...

...The war crimes trials after World War II served to glorify this hypocrisy...

...Most obvious is that Mylai was what the Pentagon and General Abrams called a "free fire zone...

...General Yamashita arrived in Manila October 7, 1944, just two days before the American troops landed on Leyte...

...And a U.S...

...Is it the method of killing that is at stake...

...The other is that inherently such a trial implies that what they did was worse than other forms of warfare...

...This led to his summary of the case against Yamashita: "Read against the background of military events in the Philippines subsequent to October 9, 1944, these charges amount to this: 'We, the victorious American forces, have done everything possible to destroy and disorganize your lines of communication, your effective control of your personnel, your ability to wage war...

...Unlike alleged mistreatment of prisoners of war or rape in the doomed city of Manila, these atrocities might be supported by a military rationale, similar to the excuse given for bombing urban targets, or starving a civilian population by use of an effective blockade...

...He was hanged because he was an important general in command of troops who committed atrocities that were similar in the finest detail to the occurrences and motivations of Mylai...

...by A. FRANK REEL To most of the listeners, including the American Army officers sitting in judgment, it sounded like the brutal blood-lust of uncivilized beasts...

...They begged for mercy...

...five-star general, with self-righteous ardor, carried it out...

...It is Batangas, on Luzon, Philippine Islands, 1945...

...One can be sure that if there were any evidence whatsoever on which to peg a finding of personal culpability, the U.S...

...Women and children of all ages lie dead, some men but none in recognizable uniform...

...Supreme Court Justice Frank Murphy, in his dissent two months later, observed: "He [Yamashita] was not charged with personally participating in the acts of atrocities or with ordering or condoning their commission...

...but these crimes were committed by Japanese sailors who had refused to leave the city although ordered to do so by Yamashita...

...One line especially, from Murphy's dissent, should give us pause as we rush headlong into another military trial...

...As admitted after the war by Secretary of War Henry Stimson, the bombings were carried out for purposes of terrorizing the civilian population and thus hastening an enemy surrender...

...But it is certainly a justifiable basis for judgment of the same American generals...

...Cold blood, cold blood, cold blood...

...Thus it is that in the somber courtroom, speaking in their native tongue through painstaking interpreters, or perhaps testifying in halting, broken pidgin-English, the survivors tell their tales of horror: "Men, women, and little children—the soldiers pushed us into a group—they pointed their weapons and fired—people fell screaming all around me...

...To judge a defeated foreign commander by "standards which American generals take for granted" may be of doubtful validity...

...A. FRANK REEL, a television executive in New York, was one of the defense counsel for General Tomoyuki Yama-shita in the first of the long series of war crimes trials after World War II...

...Arms and ammunition came to the guerrillas from the Americans by submarine and parachute in ever increasing quantities, and formal recognition of their co-belligerent status was granted by General Douglas MacArthur's headquarters to specifically named units...

...On the contrary, it was proved that General Yamashita's order had been to combat only "armed" guerrillas and to "handle the Filipinos carefully and to cooperate with them...

...If it seems shocking to apply this standard to our generals in Vietnam, to our chiefs of istaff, to other leaders in our military hierarchy, we might reflect upon the relative ability of General Yamashita to find out what his troops were doing compared with that of our own commanders...

...Punctuating the testimony are the pictures of piles of bodies, grotesquely twisted, lying in groups in gutters and on hillsides...

...The soldiers who so brutally killed civilians wore the uniform of Imperial Japan, not the United States of America...

...It is as though we were now to place on trial for complicity in the Mylai massacre not the lieutenant who has been charged or the captain who may be, but General Creighton W. Abrams or General William C. Westmoreland, or perhaps even the Commander-in-Chief, who is now a former President residing quietly at his Texas ranch...

...But today they bear rereading...

...There was no finding, there was no evidence, and there was not even any charge that he ordered the atrocities, that he condoned them, that he even knew about them...

...Thus was the precedent set by five high-ranking American generals appointed by the Supreme Commander of the Army Forces in the Pacific to preside over the trial of General Yamashita...

...There we have it—America's announcement to the world of its official position on the responsibility of a military commander...

...Justice Murphy's dissenting opinion quoted the report of the U.S...

...Not only the Yamashita case, but the trials at Nuremberg as well as those in Tokyo, whether by American military commission or international tribunal, supported the theory that there are good ways to fight a war and bad ways to fight a war...

...It appeared that generally the Japanese treated their prisoners as they did their own troops, as required by the 1929 Geneva Convention...

...even that the slaughter of babies is acceptable if we are sufficiently revolted by the policies of the political leaders of the parents of those babies...

...The precedent was affirmed by our highest judicial body, the Supreme Court of the United States...

...I hid under the body...

...The record, he added, was "a blot on the military profession...

...The effectiveness of the guerrilla movement in the Philippine Islands toward the end of World War II was noteworthy...

...That was all...

...He has failed utterly his soldiers' faith...

...Although in the beginning their activities ranged from furnishing intelligence to the American Army in Australia or New Guinea by means of portable radio stations to "vigilante" or even bandit activity among their own people, after the American reinvasion the guerrillas emerged above ground and augmented both the quality and quantity of belligerent violence...

...that "in many cases they were methodically supervised by Japanese officers and non-commissioned officers...

...To only a few did it appear to be the patterned reaction of frustrated soldiers who came to a foreign and inhospitable land, only to be ambushed, booby-trapped, mutilated by a phantom foe...

...military acknowledged this truth because it charged Admiral Soemu Toyoda of the Japanese Naval Ministry with responsibility for the same offenses...

...the soldiers would eventually be found dead, their heads and other organs removed by bolo knives...

...All of the legalized executions—that of General Yamashita, and the hundreds of others—in which we indulged after World War II, did not prevent Mylai or Hue, or the dozens of other Mylais and Hues that have occurred in various parts of the world in the last twenty-five years...

...The result was a succession of punitive raids of the Mylai type...

...In those respects we have succeeded...

...The dissenting opinions of Justices Wiley Rutledge and Frank Murphy went unheeded...

...And the man my lawyer colleagues and I were defending, the man accused of violating the laws of war in that he was allegedly responsible for the indiscriminate murder of unarmed civilians, including helpless women and children, was not a lieutenant or a captain or a non-commissioned officer or a soldier who was there...

...The trial of a lieutenant or a captain or a non-commissioned officer or any other underling for what occurred at Mylai, without corresponding action against line officers higher up in the chain of command, even to the top, exposes one side of the coin of hypocrisy...

...It is true that there was no evidence that General Yamashita ordered or condoned or knew of these crimes...

...And now we charge and condemn you for having been inefficient in maintaining control of your troops during the period when we were so effectively besieging and eliminating your forces and blocking your ability to maintain effective control.' " Whatever their problems, no similar extenuation is available to our generals in Vietnam...

...Revolting as this may be in itself, it pales before the sinister and far-reaching implication thereby attached to the profession of arms...

...The argument was made that Yamashita "must have known" about the massacres, and by inference, approved them...

...Another set of alleged crimes had to do with mistreatment of prisoners of war, but here again the evidence was not compelling...

...An exception may be made to permit bombardment of a "military target...

...An American Military Commission pronounced the sentence...

...that there are nice ways to kill and naughty ways to kill...

...Ambush, demolition, assassination, and occasionally open combat became the nocturnal activity of more than a hundred thousand Filipino men who had secreted themselves in the hills and mountain slopes and who were supplied with food and information by other more loosely organized groups of men, women, and even children in the villages below...

...Most distressing to us as defense lawyers were the cases of deliberate murder of civilians, including women and children, in the villages of Batangas Province...

...the alleged crimes fell into three major categories, Yamashita's defense counsel were most concerned by those that bear striking similarity to the Mylai allegations...

...The guerrillas are killers by night who fade into the landscape by day and are indistinguishable from the subservient peasantry...

...Instead the Commission could only conclude that "atrocities and other high crimes have been committed by members of the Japanese armed forces under your command...

...Speaking through Chief Justice Harlan Stone, the court cited the appropriate strictures designed at the Hague in 1907 to protect civilians in a war zone, and rested on the rule that an armed force "must be commanded by a person responsible for his subordinates...

...U.S...

...American control of the air was such that from the beginning he did not dare leave Jiis bunker by daylight, and within a matter of weeks was forced to move his headquarters into the northern mountains of Luzon for the duration of the war...

...It is the testimony to which I listened day after day, for the better part of six weeks, some twenty-five years ago...

...Has the time now come...

...The American Military Commission, in support of its findings of guilt on the part of Yamashita, allowed itself some preliminary philosophizing...

...Is this Mylai, in Songmy, Vietnam, 1968...

...I saw him shot...

...Speaking of the massacres in the guerrilla-infested villages, the American generals said: "The Japanese commanders testified that they did not make personal inspections or independent checks during the Philippine campaign to determine for themselves the established procedures by which their subordinates accomplished their missions...

...Whether the native farmer or his wife or even his child are themselves the midnight assassins is not really material...

...and that this amounted to a failure on the part of General Yamashita "to provide effective control of your troops...

...The international tribunal that heard the Toyoda case reluctantly freed the Admiral when his counsel pointed out that Yamashita had already been found guilty of command responsibility for the same crimes...

...We were concerned because the pattern appeared to be not the wild running amok of the doomed men in Manila, but the somewhat planned and organized attempt to rout out Filipino guerrillas whose augmented campaign became increasingly destructive of Japanese lives and morale...

...The soldier, be he friend or foe, is charged with the protection of the weak and unarmed...

...He is the author of "The Case of General Yamashita...

...General Yamashita was hanged...

...Japanese night patrols would fail to return to their bases...

...Admiral Toyoda, it seems, had ordered the sailors to stay and defend the city in contradiction to Yamashita's direction...

...To pretend that we are furthering the cause of domestic tranquillity and international justice by punishing the "criminal means" of conducting a criminal enterprise, is not only irrelevant but it is dangerous...

...Bridges were destroyed, wires were cut, military vehicles were wrecked...

...what is important is that the whole guerrilla movement could not exist without the support of the villagers...

...As an area under the control of the enemy, it was considered a fair target for air and artillery bombardment...

...Military Commission would have used it...

...The greater evil is that our current preoccupation presupposes that there is a "good way" to fight this war or any war...

...The United States set the precedent...

...Throughout the archipelago, groups of Filipinos had banded together, sometimes under the leadership of American soldiers who had escaped from Bataan, but more often under native organizers...

...The unpopularity of the Vietnam business and the shame of Mylai can be turned to the advantage of humanity only if they are seen for what they are...

...Not even knowledge of these crimes was attributed to him...

...I heard her scream...

...It was simply alleged that he unlawfully disregarded and failed to discharge his duty as a commander to control the operations of the members of his command, permitting them to commit the acts of atrocity...

...Indeed, the fate of some future President of the United States and his chiefs of staff and military advisers may well have been sealed by this decision...

...chief-of-staff that credited our land forces, the guerrillas, and our aircraft with responsibility for Japanese disorganization at the time the atrocities were committed...

...Many prisoners of war came close to starvation, but so did the unhappy Japanese soldiers as the American noose tightened about the islands...

...Taken at full face value, the testimony indicates that Japanese senior commanders operate in a vacuum, almost in another world, with respect to their troops, compared with the standards American generals take for granted...

...But there was no such evidence...

...The Japanese felt that practically the entire population of provincial areas had sprung to arms against them, that the placid Filipino "civilians" who smiled at them by day were treacherously murdering them by night...

...When he violates this sacred trust he not only profanes his entire cult but threatens the very fabric of international society...

...our current preoccupation presupposes that there is a 'good way' to fight this war or any war...

...Hence the ultimate answer is the ultimate simplicity: wipe them out...

...Our defendant was the defeated commanding General of all Japanese forces—land, sea, and air—in that entire theater of war, General Tomoyuki Yamashita...

...But the wiping out of Dresden, the fire bombing of Tokyo, the nuclear destruction of Hiroshima and Nagasaki, all of which visited death and worse-than-death on hundreds of thousands of defenseless women and children, never pretended to be the destruction of "military targets...

...The "particulars" covered rape and pillage by the Japanese defenders inside the old walled city of Manila, all of whom were killed later by American artillery...

...Man's long struggle to become civilized is impeded by those assumptions...

...Supreme Court affirmed it...

...Protesting the repressive implications that necessarily arise from the theory of "command responsibility" that sent Yamashita to the gallows, Justice Murphy said: "No one in a position of command in an army from sergeant to general can escape those implications...

...To describe Vietnam as an "immoral war" or a "dirty war" implies an assumed premise that there is some other kind...

...The very laws of war that are violated when a soldier kills civilians contain prohibitions against aerial attack that has the same effect...

...As defense counsel, we argued then that the Manila crimes could not be attributed to Yamashita, and within a year the U.S...