The Nation: The Clamor Over Calley: Who Shares the Guilt?

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generals—say, William C. Westmoreland, U.S. commander in Viet Nam at the time of My Lai? Clearly, the Yamashita decision is part of U.S. law until the Supreme Court or Congress amends it. Unlike Yamashita, moreover, Westmoreland had superb communications with his troops. But even if he is prosecuted for My Lai, which seems totally unlikely, a modern court-martial would unquestionably require detailed proof that Westmoreland had had actual knowledge or reason to know that Calley-style acts were likely to occur, and that he had failed to take reasonable steps to ensure compliance with the laws of war. "I feel no guilt," said Westmoreland last week. "My orders were that all atrocities would be reported and investigated according to the rules of the Geneva Convention, and it is our obligation to follow through and punish those atrocities."

The conduct of the whole war, of course, is a basic issue of My Lai, but the judicial process can scarcely cope with it. To be sure, further responsibility for the My Lai disaster should be established by trials of some of Calley's superiors. The big picture, though, may never be illuminated by a court. Military courts, for example, may not try men who have left the service or even compel their testimony to much avail. Also, it is impractical to ask a military jury of career officers to judge command practices in Viet Nam when their verdict could affect their chances of promotion and the morale of the whole Army. Calley's jurors dealt solely with his case; that was a tough enough task.

It is equally impractical—absurd, in fact—to envision some other kind of U.S. court staging a neo-Nuremberg war-crimes trial with Robert McNamara, Dean Rusk or Lyndon Johnson in the dock. It is one thing to say that such civilian leaders bear major responsibility for the war and the course it took, but quite another to expect legal judgment on such issues. Beyond that, clearly, none of those men are open to Nuremberg charges of "crimes against peace" and "crimes against humanity." All sought quite the opposite ends in Viet Nam, and intent is crucial in law. All believed that the U.S. was repelling an aggressor, upholding the Nuremberg principles and fighting a "just war" —the kind defined by St. Thomas Aquinas as aimed at "a good to be affected or an evil to be avoided." All sincerely believed that their policies would save lives and shorten the war. They turned out to have chosen the wrong means. That was not a crime that any court can remedy; it was a tragic blunder.

For the American military, there is no easy exit from either the specific problems created by My Lai or the broader debate over how the war in Indochina has been conducted. The Calley verdict could create serious practical problems of command discipline. Already at Khe Sanh, there is a defiant sign: "A" TROOP, 15T OF THE 15T CAV, SALUTES LT. WILLIAM CALLEY. Many of the enlisted infantrymen in Viet Nam agree. Says one, a member of Calley's old Americal Division: "The people back in the world don't understand this war. We were sent here to kill dinks. How can they convict Calley for killing dinks? That's our job."

On a more elevated level, James M. Gavin, a retired lieutenant general who was a distinguished paratroop commander in World War II, warns that "junior