397

YAMASHITA, NUREMBERG AND VIETNAM: COMMAND RESPONSmILITY REAPPRAISED

Franklin A. Hart

... if you were to apply to them war. Variations of Taylor's Yamashita [General Westmoreland and other analogy, often including the word U.S. generals] the same standards "Nuremberg," are freely bandied about that were applied to General in the more important organs of the Yamashita, there would be a very American press. This publicity has con· strong possibility that they would tributed to widespread belief that a come to the same end as he did. 1 general principle of concerning command responsibility was The preceding assertion by Professor established in the Yamashita case and , the U.S. prosecutor at that application of the so-called Yama· Nuremberg after World War II, is a shita principle to the benchmark in the current discussion of wouid work to the detriment of U.S. war and Vietnam. For the first leaders. time, a reputable scholar of moderate The popular view of the Yamashita persuasion suggested the possibility that case is well expressed in the following American military leaders be tried for passage from Taylor's book: their responsibilities in the conduct of There was no charge that General the Indochina war. Taylor's book Yamashita had approved, much Nuremberg and Vietnam became an less ordered these barbarities and instant success, and his analogy concern· no evidence that he knew of them ing Yamashita is regularly cited in the other than the inference that he debate over the U.S. conduct of the must have because of their 398 extent. ... Nevertheless, the tri­ formulated under the international law bunal found Yamashita guilty on of war. Command responsibility con­ the ground that he had cerns the responsibility of a military " .... failed to provide effective commander for the actions of his sub­ control of his troops as required ordinates. Inherent in this discussion is by the circumstances" and the development of this concept in the sentenced him to death by hang­ Yamashita and and ing. 2 then application of the internationally Unquestioningly accepting this per­ recognized standard to U.S. conduct in ception of the Yamashita case, many Vietnam. writers and commentators on the Viet­ A final preliminary point is that in nam war would then agree with Taylor's his recent book Professor Telford Tay­ conclusion quoted in the beginning of lor subsumed under the rubric of this article that U.S. military leaders "Yarnashita Case" an argument he had would meet Yamashita's fate if sub­ put forward at the Nuremberg tribunals jected to the standards of his trial. more than two decades ago. His argu­ Most members of the press and the ment of absolute command respon­ academic community have adopted Tay­ sibility was categorically and expressly lor's thesis at face value without rejected in the Nuremberg "High Com­ examining it closely. None apparently mand Case.,,4 The Nuremberg section have wondered .why Nuremberg prose­ of this study will document that result. cutor Taylor, responsible for the trial Recognition of Taylor's attempt to and imprisonment of a large number of resurrect a previously rejected argument senior German military leaders, chose to is important because it indicates the select as his standard and precedent the confusion and misunderstandings extant result of an American Military Com­ in the field of command responsibility. mission in the Far East that was not At a time when men's lives and conducted under international auspices. reputations are at stake, it is distressing The issues arising over "command to read as great a denial of legal crafts­ responsibility" as an international law manship and law as has been evidenced of war concept can be stated precisely. in Professor Taylor's comment in the The popular perception of the Yama­ introduction to Nuremberg and Viet­ shita principle is that it established a nam: rule that a military commander was For these purposes, the term responsible for the breaches of law "Nuremberg Trials" should not be committed by members of his command taken as limi ted to the precise whether or not he personally knew rulings of the Nuremberg courts, about them. Yet, 2 and then 3 years but in its broad sense, as standing after the Yamashita case, international for all the war crimes trials that military tribunals operating in a judi­ followed in the wake of the cially restrained atmosphere at Nurem­ Second World War, and the ideas berg articulated a restricted standard of they have generated. Today command responsibility which required "Nuremberg" is both what actu­ that a military commander had to be ally happened there and what personally derelict to be found guilty. 3 people think happened, and the Why has Nuremberg been ignored in the second is more important than the headlines linking My Lai and Yama­ first. To set the record straight, is, shita? Can Nuremberg and Yamashita be no doubt a useful historical exer­ reconciled? cise, but sea change is itself a This paper seeks to examine the reality, and it is not the bare concept of cClmmand responsibility record but the ethos of Nurem- 399 berg with which we must reckon The prosecution built its case upon today. proving to the Commission that the Put another way, Nuremberg is atrocities had indeed been committed not only what was said and done and identifying the perpetrators as in­ there, but also what was said dividuals or units ultimately subordinate about it, then and subse­ to General Yamashita. 9 The core of the quently ...5 prosecution's contention is contained in As a constitutional lawyer, Professor the following assertion by the chief Taylor knows that such attacks as his prosecutor: must be clearly written. Surely it is a The record itself strongly supports very questionable practice to establish the contention or conclusion that public emotion, rather than precisely Yamashita not only permitted but reasoned judgments, as formulating the ordered the commission of these rules of human behavior. atrocities. However, our case does not depend upon any direct Yamashita Case. On 7 December orders from the accused. It is 1945, an American Military Commission sufficient that we show that the of five general officers, sitting in Manila, accused "permitted" these atroci­ Philippine Islands, found Gen. Toma­ ties. ... Who permitted them? yuki Yamashita, Commanding General Obviously the man whose duty it of the Japanese 14th Army Group in was to prevent such an orgy of the , guilty of failing to planned and obviously deliberate discharge his duty by permitting the , and arson-the com­ members of his command to commit mander of those troops! 1 0 atrocities against Americans and Fili­ Perhaps concerned that the Military pinos in the Philippine Islands during Commission would not accept this the period 9 October 1944 to 2 Septem­ theory and would require proof of ber 1945 and sentenced him to hang. Yamashita's personal involvement, the After ultimate recourse to the Supreme prosecutor went beyond his stated plan Court of the United States, Yamashita and introduced evidence directly linking was hanged on 23 February 1946.6 Yamashita to the atrocities. 11 The evidence presented to the Mili­ The judgment of the Military Com­ tary Commission indicated that a signifi­ mission appeared to support the prose­ cant number of atrocities were com­ cutor's contentio"n. The frequently cited mitted by members of the Japanese part of the judgment which established military within a short time interval and for legal onlookers the principles under under similar circumstances during the which Yamashita was found guilty reads dates specified. The 123 specific charges as follows: alleged a total of tens of thousands of Clearly, assignment to command deaths.7 General Yamashita contended military troops is accompanied by that most of the atrocities were com­ broad authority and heavy respon­ mitted by units or commanders distant sibility. This has been true in all from his headquarters, either geographi­ armies throughout recorded his­ cally or in the chain of command, and tory. It is absurd, however, to that he had no knowledge of the atroci­ consider a commander a murderer ties. In its judgment, the Commission or rapist because one of his accepted certain of the geographical and soldiers commits a murder or a communications difficulties alleged by rape. Nonetheless, if murder and the Japanese general but concluded that rape and vicious, revengeful these problems were not quite as insur­ actions are widespread offenses mountable aSI Yamashita contended.8 and there is no effective attempt 400 by a commander to discover and believed Yamashita lied as to believe control the criminal acts, such a that it accepted his word. commander may be held respon­ If we reexamine the judgment we can sible, even criminally liable, for find sections in which the Military the lawless acts of his troops, Commission exhibited disbelief at what depending upon their nature and Yamashita told them and seemed con­ the circumstances surrounding vinced that he ordered or knowlingly them .... 12 permi tted the atrocities. Consider this With this statement of principles, the part of the judgment: Military Commission then went on to The prosecution presented evi­ declare to General Yamashita, u ••• that dence to show that the crimes during the period in question you failed were so extensive and widespread, to provide effective control of your both as to time and area, that troops as required by the circum· they must either have been wil­ stances." fully permitted by the accused, or Since this key part of the judgment secretly ordered by the accused. did not address the question of actual Captured orders issued by sub­ knowledge on General Yamashita's part ordinate officers of the accused and because the evidence linking Yama­ were presented as proof that they, shita to the atrocities has been por­ at least, ordered certain acts lead­ trayed as weak, most legal scholars ing directly to exterminations of concluded that Yamashita's guilt was under the guise of elimi­ based upon his commanding a unit nating guerrillas hostile to engaged in such widespread atrocities Japan.13 that he should be held responsible for The Commission's comments con­ them. It is not clear, however, whether cerning Yamashita's method of opera­ ascription arises from imputation of a tion displayed considerable incredulity. constructive knowledge or from a legal The Japanese Commanders testi­ concept of absolute responsibility. fied that they did not make per­ In reviewing the Military Commis­ sonal inspections or independent sion's judgment, we find that the U.S. checks during the Philippine cam­ generals were impressed by the scope of paign to determine for themselves the atrocities and hence believed that the established procedures by General Yamashita should have known which their subordinates accom­ about them or did know and lied about plished their missions. Taken at his knowledge. The difference between full face value, the testimony indi­ the two propositions is significant be­ cates that Japanese senior com­ cause upon it hinges the question as to manders operate in a vacuum, whether or not personal guilt must be almost in another world with proved. Unfortunately, the Commis­ respect to their troops, compared sion's judgment failed to discuss ex­ with standards American generals plicitly whether it accepted or rejected take for granted. 14 Yamashita's contention of ignorance. The quoted sections of the judgment Because of their perception of an resulted from the extensive evidence absence of credible evidence linking the introduced by the prosecution which Japanese general to the proven atroci­ purported to show that Yamashita knew ties, international legal scholars and of the atrocities, ordered some of them, others have usually asserted that the and was headquarterd so close to several Commission accepted Yamashita's state­ of the scenes of infamy that he could ment of ignorance. Yet it is equally as not have failed to notice them. Nothing credible to assE1rt that the Commission in the questioning by the Military 401 Commission or in its judgment provides province. The deliberate destruc­ a basis to believe that the generals did tion of whole towns and barrios not accept this evidence. The evidence was also a part of this plan ... I 7 linking Yamashita to the atrocities, al· In short, the Board of Review perceived though often hearsay, was quite spe· a conspiracy to commit di­ cific. IS When one combines the quan­ rected or abetted by Yamashita. tity of such evidence with the judgment, Second, the Board took special note it becomes difficult to believe that the of evidence which connected General Military Commission accepted Yama­ Yamashita with actual knowledge of the shita's protestations of ignorance. atrocities perpetrated. Telford Taylor, The contention that the Military who wrote that there was "no evidence Commission rejected Yamashita's plea that he [Yamashita] knew of them [the of ignorance is strengthened by para­ atrocities] other than the inference that graphs below which describe how a he must have because of their extent" I 8 Board of Review of Army officers in the should be surprised at the amount of Pacific informed Gen. Douglas Mac­ evidence presented to the Commission Arthur that Yamashita's testimony which indicated knowledge. I 9 Ad­ could not be believed mittedly, the evidence linking Yama· The review conducted by General shita to the crimes included a number of MacArthur is an important and previ­ instances of hearsay evidence and con­ ously unpublished part of the Yama­ jecture. What is important is that the shita proceedings. MacArthur's con­ Board of Review apparently believed it firmation of the sentence of hanging and described it to General MacArthur followed his receipt of a written review without cautioning him as to its legal which asserted that Yamashita had lied. validity. 2 0 The Board of Review of five military lawyers, headed by Col. C.M. Ollivetti, Third, the Board of Review reo the Theater Judge Advocate, prepared a affirmed the validity of the concept of detailed analysis of the record of trial command responsibility without ad­ for MacArthur. I 6 dressing the subject of explicit knowl­ First, the review presented evidence edge raised by the defense. of a deliberate Japanese plan of exter­ But since the duty rests on a mination: commander to protect by any The following evidence indicates a means in his power both the civil deliberate plan of extermination: population and the prisoners of most of the atrocities were com­ war from wrongful acts of his mitted during a short period in command and since the failure to February, 1945 ... and were car­ discharge that duty is a violation ried on under the supervision of of the Laws of War, there is no Japanese officers ... following reason, either in law or morality, the same procedure of concen­ why he should not be held crimi­ trating the population of a town nally responsible for permitting or barrio at a convenient place such violations by his subordi­ and killing them in an orderly nates, even though that action has manner. ... the large scale upon heretofore seldom or never been which attempts were made to taken. The responsibility of the exterminate the male popUlation commander to control his troops of some places ... and the is well understood by all experi­ wanton killing of women and chil­ enced military men, including dren ... indicates an intention to accused ...21 wipe OUtl the people of the Specific aspects of this command 402 responsibility doctrine were discussed in sporadic acts of soldiers out of the review when it faulted the accused: control but were carried out pur­ Although the attitude of the Fili­ suant to a deliberate plan of mass pino civilians was one of increas­ extermination which must have ing hostility, he did not, though in emanated from higher authority violation of duty investigate their or at least had its approval .... conditions at any time nor did he From the widespread character of ever inspect or the atrocities as above outlined, internment camps, even the orderliness of their execution though one was located at his and the proof that they were done headquarters ... At no time did pursuant to orders, the conclusion he order, receive any report or is inevitable that the accused acquire any knowledge whatever knew about them and either gave of any mistreatment or killing of his tacit approval to them or at civilians, American prisoners of least failed to do anything either war or civilian internees by the to prevent them or to punish their military police or any of his sub­ perpetrators. ordinates.22 There was some evidence in the Fourth, the disbelief in Yamashita's record tending to connect accused contention that he knew nothing of the even more directly with the com­ atrocities, the. Review Board's belief in mission of some of the atroci­ the extermination plan thesis, and the ties ..., While, however, it may be credence given the evidence linking conceded that the accused was Yamashita to the crimes are brought operating under some difficulty together in the summary section of the due to the rapidity of the advance review: of the Americans, there was sub­ The only real question in the case stantial evidence in the record concerns accused's responsibility that the situation was not so bad for the atrocities shown to have as stated by the accused ....23 been committed by members of After the findings and sentence were his command. Upon this issue a confirmed by General MacArthur, the careful reading of all the evidence defense appealed to the Supreme Court impels the conclusion that it of the United States. Without examining demonstrates this responsibility. the substantive evidence introduced in In the first place the atrocities the trial at Manila, the Supreme Court were so numerous, involved so ruled that the offense of which General many people, and were so wide­ Yamashita was charged constituted a spread that accused's professed violation of the laws of war: ignorance is incredible. Then, too, The question then is whether the their manner of commission re­ imposes on an army veals a striking similarity of pat­ commander a duty to take such tern throughout ... in several in­ appropriate measures as are within stances there was direct proof of his power to control the troops statements by the Japanese par­ under his command for the pre­ ticipants that they were acting ventipn of the specified acts pursuant to orders of higher au­ which are violations of the law of thorities, in a few cases Yamashita war and which are likcly to attcnd himself being mentioned as the the occupation of hostile territory source of the order.... All this by an uncontrolled soldiery, and leads to the inevitable conclusion whether he may be charged with that the atrocities were not the personal responsibility for his 403

failure to take such measures ledge and Frank Murphy raised severe when violations result. That this questions about the fairness of the trial was the precise issue to be tried as well as the judicial principles asserted. was made clear by the statement Murphy and Rutledge questioned the of the prosecution at the opening rules of evidence which varied con­ of the trial. siderably from those used at the time in It is evident that the conduct U.S. courts-martials, the haste of the of military operations by troops trial, denial of fifth amendment rights whose excesses are unrestrained to the accused, and the appropriateness by the orders or efforts of their of the charge? 7 In describing the commander would almost cer­ process Murphy charged that: tainly result in violations which it The trial proceeded with great is the purpose of the law of war to dispatch without allowing the de­ prevent .... fense time to prepare an adequate These provisions plainly imposed case. Petitioner's rights under due on petitioner ... an affirmative process clause of the Fifth duty to take such measures as Amendment were grossly and were within his power and ap­ openly violated without any jus­ propriate in the circumstances to tification. All of this was done protect prisoners of war and the without any thorough investiga­ ci·'ilian PQPulation?4 tion and prosecution of those In order 'to reinforce the point that immediately responsible for the the Court was not examining the evi­ atrocities, out of which might dence with respect to the critical ques­ have come some proof or indica­ tion of responsibility described above, tion of personal culpability on 2 the Court first said, "We do not here petitioner's part. 8 appraise the evidence on which peti­ Associate Justice Rutledge attacked the tioner was convicted," and then in a fairness of the trial with equal fervor: footnote to the same paragraph re­ One basic protection of our sys­ iterated, "We do not weigh the evi­ tem and one only, petitioner has dence. We merely held that the charge had. He has been represented by sufficiently states a violation against the able counsel, officers of the army law of war ....25 he fought .... But, as will appear, Those who read the Supreme Court's even this conceded shield was decision and were disappointed with its taken away in much of its value, ambiguous nature and its failure to by denial of reasonable oppor­ discuss certain questions raised by the tunity for them to perform their defense should not be surprised to find functions.29 the ambiguity deliberate. In a letter to In referring to the last minute addi­ the legal historian John P. Frank less tion of a Supplemental Bill of Particu­ than 1 month after the decision, Associ­ lars alleging 59 additional offenses and ate Supreme Court Justice Wiley Rut­ the denial of additional time for the ledge related that the argument over the defense to prepare their case, Rutledge Yamashita case and its constitutional caustically added: " ... this wide de­ implications was bitter and deep. Chief parture from the most elementary prin­ Justice Harlan Fiske Stone deliberately ciples of fairness vitiated the proceed­ omitted whole sections of constitutional ings. When added to the other denials of argument from the majority opinion fundamental right sketched above, it because of an inability of the majority deprived the proceedings of any sem­ 2 to agree on its rationale. 6 blance of trial as we know that institu­ 'rhe bitte~ dissents of Justices Rut- tion.,,30 404 To those who would charge unfair­ account Reel proved to his own satisfac­ ness on the basis of the comments tion that any evidence which linked above, we would respond that the Yamashita to the crimes should not Supreme Court in its review of the case have been admitted or was discredited sustained the proceedings. Although the when introduced. Subsequent discus­ majority ruled neither on the substance sions of the trial have for the most part of the evidence nor the question of accepted Reel's vit::ws as stated by him fairness per se, they held that the and by the two dissenting Supreme 3 offense charged was a violation of the Court Justices. 5 laws of war and that the safeguards of Rutledge's and Murphy's views con­ the fifth amendment and the require­ cerning the fairness of the trial, their ments of the Articles of War were not views on the lack of evidence linking applicable to a prisoner of war charged Yamashita to the crimes, and Reel's with war crimes committed prior to his unchallenged declarations have colored 3 capture. 1 Put squarely, unfairness was the popular view of the Yamashita trial. upheld. It would be well for us to remember At this point we should question that substantial evidence was introduced why legal scholars have asserted that which directly linked Yamashita to the there was "no evidence that he [Yama­ crimes. In one instance his own Judge 3 shita] knew of" the atrocities. 2 The Advocate testified that he had received answer appeal\S straightforward- The personal permission from Yamashita to Military Commission failed to address allow the Japanese military police to the question of knowledge explicitly, punish captured Filipino guerrillas with­ 3 and the report of the Board of Review out trial. 6 The charge that such evi­ was not published. No observer knew dence could not have been admissible in what the generals and the various re­ a U.S. court is irrelevant to our under­ viewing authorities really believed. This standing of the meaning of the Yama­ vacuum of understanding was quickly shita verdict. More importantly, the preempted by a very aggressive defense Supreme Court declined to review the team and one of its members in particu­ evidentiary rules, and the Military Com­ lar, A.. Frank Reel. In the trial at Manila, mission heard evidence under these rules the hearing before the U.S. Supreme which tended to show General Yama­ Court in Washington, and the campaign shita knew of the crimes. Hence, the waged in the press both before and after conviction reflected an example of Yamashita's execution, Reel and his command responsibility in which a com­ comrades leaned heavily on a line of mander was convicted for crimes com­ defense which asserted a lack of credible mitted by his forces about which he evidence linking Yamashita to the knew and failed to take action or may atrocities. These assertions were re­ even have directed. peated so often that they became ac­ What then should we make of the cepted as facts. Associate Justices Yamashita case? Telford Taylor'S thesis Murphy and Rutledge incorporated that war crimes trials are what people Reel's contentions concerning lack of think happened proves most valid in this credible evidence in their sharp dissents trial. Evidence exists to support the and commented on the 's belief that both the members of the failure to refute them. 3 3 Military Commission and the Reviewing After the trial Reel wrote an inter­ Authority (General MacArthur) believed esting account of the Yamashita pro· that Yamashita knew of the atrocities ceedings which received widespread committed by his forces and either publicity and is often used as a reposi­ ordered them or, at minimum, know­ tory of facts about the trial.34 In his ingly permitted them. Hence the ver- 405

dict was consistent with the accepted It should be apparent from the evi­ principle of the international law of war dence presented that the public percep­ that a commander is responsible for tion of a Yamashita principle of abso­ those actions which he directed or lute command responsibility should be sanctiolled. However, a combination of rejected and its use discredited. Con­ circumstances established in the Yama­ trary to popular belief, substantial evi­ shita case a perception of a principle of dence was introduced in the trial linking absolute responsibility. The factors lead­ Yamashita to the crimes for which he ing to this misperception were: lack of was charged. Although the evidence information as to whether or not the might be inadmissible by today's stan­ Military Commission believed Yama­ dards, the Supreme Court declined to shita; lack of information concerning review the evidentiary rules and thus the basis upon which General Mac­ allowed them to stand. More impor­ Arthur sustained the conviction and tantly, the Military Commission ac­ sentence; the ambiguity of certain por­ cepted the evidence as presented; the tions of the Military Commission's judg­ judgment gives no reason to believe ment; the hearsay nature of the evi­ otherwise. Further, the Board of Review dence which linked Yamashita to the left little doubt that it believed General atrocities; and the manner in which the Yamashita knew of the offenses and defense counsel and the dissenting hence was guilty under established inter­ Supreme Coutt Justices couched the national law. Thus, the generals who sat central issue. The defense counsel, the in judgment convicted a military com­ Supreme Court Justices, and legal mander whose troops committed war scholars appeared to believe that the crimes and who learned about the Military Commission accepted Yama­ atrocities and took no punitive or pre­ shita's protestations of ignorance at face ventive action. This result clearly con­ value and convicted him in spite of flicts with the various reports of the them. Justice Frank Murphy's descrip­ Yamashita case which usually assert that tion of the action taken against Yama­ no credible evidence was found to link shita, unchallenged in the majority the Japanese general with the offenses opinion, reflects the view held su bse­ and then announce a principle based quently by most students of interna­ upon that assertion. tionallaw: The next section of. this paper will He [Yamashita] was not charged . examine the Nuremberg Subsequent with personally participating in Proceedings which provide a precise and acts of atrocity or with ordering reasonable articulation of command or condoning their commission. responsibility rendered in an acceptable Not even knowledge of these judicial environment. crimes was attributed to him. It was simply alleged that he unlaw­ The Nuremberg Subsequent Proceed­ fully disregarded and failed to ings. The principle of limited command discharge his duty as commander responsibility articulated at Nuremberg to control the operations of mem­ is consistent with the command respon­ bers of his command, permi tting sibility doctrine cited in the Yamashita them to commit the acts of case. It is no accident that Telford atrocity.37 Taylor selected the word "Nuremberg" Legal scholars have subsequently ac­ for use in the title of a book concerning cepted the so·called Yamashita principle principles derived from all war crimes as Justice Murphy stated it without trials following the Second World War. reconciling it to later trials at Nurem­ To the American public Nuremberg is berg or elsewhere. both synonymous with war crimes trials 406 and perceived as the accepted standard tion of Soviet political officers captured of such trials. Additionally, the conduct by German forces; implemented the of the trials at Nuremberg evoked less "Barbarossa" jurisdictional order which criticism of their fairness and received called for the execution of captured far more praise for their judicial re­ Russian partisans; and condoned crimes straint than did certain of the U.S. against civilians through the activities of Military Commissions in the Far East or the Einsatzgruppes which operated in the International Military Tribunal for the Army Group rear area and were 3 the Far East. 8 responsible for the execution of thou­ 4 Two types of trials were conducted sands of civilians. 0 at Nuremberg. During 1945-1946 the Von Leeb put forward a vigorous In ternational Military Tribunal at defense. First, he asserted that he had Nuremberg tried the major war crimi­ opposed illegal orders such as the "Com­ nals including Goering, Hess, Keitel, missar Order" and had not disseminated Speer, and others. Upon completion of them. Second, he maintained that he this tribunal, the United States, under had received no reports of executions of international auspices, conducted the Russian soldiers or civilians and that he Nuremberg Subsequent Proceedings; was unaware of the operations of the these consisted of 12 trials against major Einsatzgruppes, although credible evi­ groups of German leaders, including dence proved that their activities were 4 government ministers, justices, diplo­ widespread and notorious. 1 mats, and others. Two cases against military leaders have relevance for the In effect, Von Leeb presented a study of "Command Responsibility": defense that had many elements in Case No.7, U.S. v. List et. al., "The common with that of General Yama­ case"; and Case No. 12, U.S. v. shita. How was it received? The prosecu­ von Leeb et. al., "The High Command tion's closing arguments in the Von case." Leeb case were reminiscent of the prose­ "The High Command case" con­ cution arguments at Manila in the fall of cerned the trial of 14 German Army, 1945. In respect to Von Leeb himself, Navy, and Air Force leaders for plotting the prosecution, under Taylor's direc­ aggressive war and implementing illegal tion, charged: orders such as the "Commissar Order," The prosecution suggests that the "Barbarossa Order," the "Com­ these so-called "defenses" are mando Order," and the "Night and Fog miserable fabrications, and that Decree." Most of the alleged offenses the record proves incontrovertibly 3 occurred on the Russian front. 9 that the Commissar Order was The most prominent defendant in distributed and carried out within "The High Command case" was Field von Leeb's Army Group, with von Marshal Wilhelm von Leeb, who com­ Leeb's knowledge and resulted in manded, among other units, Army the outright murder of numerous Group North on the Russian front from prisoners of war . . .. Whether von June 1941 to January 1942. Von Leeb Leeb himself passed the order to was charged with war crimes and crimes the Fiftieth Corps, or whether, against humanity through the commis­ knowing that the Sixteenth Army sion of crimes against enemy belliger­ would pass the orders to them, he ents and prisoners of war. Specifically, took no action to prevent this, the Chief Counsel of War Crimes, Brig. seems to the prosecution a totally Gen. Telford Taylor, charged that Von academic question .... von Leeb's Leeb: implemented the "Commissar testimony that he did not learn of Order" callil}g for the immediate execu- the reports concerning the shoot- 407 ings of commissars pursuant to from that fact alone. There must the order is totally incredible.42 be a personal dereliction. That can In its judgment the tribunal ex­ occur only where the act is di­ amined closely the evidence directly rectly traceable to him or where linking Von Leeb with crimes against his failure to properly supervise enemy belligerents or prisoners of war his subordinates constitutes and found him not guilty of executing criminal negligence on his part. In Red army soldiers within his area, not the latter case it must be a per­ guilty of the murder or slave labor sonal neglect amounting to a recruitment of civilians in his area, not wanton, immoral disregard of the guilty of the pillage of public and action of his subordinates private property, and not guilty of amounting to acquiescence.4 4 criminal conduct in the siege of Lenin­ Later the tribunal stated explicitly grad. What is signficant about this find­ that, " ... the commander must have ing is that Von Leeb was found not knowledge of these offenses and ac­ guilty of the first two charges even quisesce or participate or criminally though credible evidence was presented neglect to interfere in their commission that such criminal activities occurred and that the offenses must be patently within his Army Group area. The court criminal. ,,4 5 found Von Leeb guilty of implementing In dealing with its judgment on Von the "Barbarossa" jurisdiction order Leeb, the tribunal categorically rejected which specifie~ execution for certain the prosecution's arguments and said: types of Russian guerrillas captured. He The evidence suggests that crimi­ was sentenced to 3 years in prison, given nal orders were executed by units credit for pretrial confinement, and subordinate to the defendant and released at the end of the trial.4 3 criminal acts were carried out by In its judgment rendered on Von agencies under his command. But Leeb and his codefendants, the court it is not considered under the dealt rather specifically with the subject situation outlined that criminal of command responsibility: responsibility attaches to him Modern war such as the last war merely on the theory of su bordi­ entails a large measure of decen­ nation and overall command. He tralization. A high commander must be shown both to have had cannot keep completely informed knowledge and to have been con­ of the details of military opera­ nected with such criminal acts tions of subordinates and most either by way of participation or assuredly not of every administra­ criminal acquiescence.4 6 tive measure. He has the right to Additionally, the court further stated assume that details entrusted to in another part of the Von Leeb judg­ responsible subordinates will be ment: legally executed. The President of While he [von Leeb] had the right the United States is Commander to issue orders to his subordinates in Chief of its military forces. concerning such matters, he also Criminal acts committed by those had the right to assume that the forces cannot in themselves be officers in command of those charged to him on the theory of units would properly perform the subordination. The same is true of function which had been en­ other high commanders in the trusted to them by higher authori­ chain of command. Criminality ties, both as to the proper care of does not attach to every individ­ prisoners of war or the uses to ual in this phain of command which they might be put.47 408 The cases of Von Leeb's codefen­ command responsibility are impressive. dants are not of concern here since In a series of trials conducted under those who were found guilty of crimes international auspices, panels of U.S. against enemy belligerents or prisoners civilian judges, operating in a more of war faced overwhelming evidence judicial atmosphere than that which which linked them to both knowledge prevailed in Manila in 1945, rejected the and direction of such crimes. No real doctrine of absolute command responsi­ doubt exists that a commander who bility apparently established in the directs illegal acts against civilians or Yamashita case and established more prisoners of war or who knows of such limited and reasonable standards con­ acts by troops under his command and cerning a commander's responsibility fails to take proper action bears criminal for the actions of his command. The responsibility . negligence of the commander had to be A second Nuremberg trial which "personal." Knowledge of the had offers insights into the issue of com­ to be shown. The civilian judges at mand responsibility was the trial of Nuremberg seemed better able than the Wilhelm List and others, commonly generals at Manila to acknowledge the known as the "Hostages Case." Field difficulties of discipline in unusual situa­ Marshal Wilhelm List and 11 other tions, the reliance of a commander on German officers were brought to trial his subordinates, and the breadth and during the Nuremberg Subsequent Pro­ scope of activities under the control of ceedings on the charge that they had senior military commanders. committed war crimes and . The charges reflected Vietnam. Telford Taylor's allegations the cruel and bloody reprisals, including against General Westmoreland and other the shooting of hostages, that the Ger­ U.S. military commanders are based man generals had inflicted on the popu­ upon the underlying assumption that lations of Greece, Yugoslavia, and war crimes committed by U.S. forces Albania. All but two of the defendants have been so numerous that U.S. mili­ were found guilty in varying degrees.48 tary leaders should have known of them and hence prevented them. This allega­ The case affirmed the principle of tion has been stated more explicitly by the responsibility of the commander for others.s 0 the actions of his forces. On the other How can the U.S. military leaders hand, specific evidence was introduced reply? This is a question which every linking knowledge of the atrocities, as military professional must be able to well as direction in some instances, to discuss. A reply to this question might the defendants. Defendants in this case proceed on two different planes. First, were unable to prove ignorance since the number of criminal or unlawful acts lesser officials regularly reported all committed by U.S. forces would not reprisals to the senior commanders. seem as widespread to a U.S. general as Several of the defendants were found they would to a Telford Taylor or a not guilty of implementing the "Com­ Richard Falk because many of the acts missar . Order" within their units al­ considered unlawful by Taylor or Falk though cases of its implementation were might be considered legal under interna­ proven. The prosecution lost on such tional law. Second, U.S. military leaders charges when it was unable to link the could establish a vigorous affirmative defendants with direct knowledge of the 49 defense through demonstration of the crimes. command policies, command briefings, The implications of the Nuremberg individual briefings, and punishments Subsequent Proceedings for the issue of rendered against perpetuators of unlaw- 409 5 ful acts. Each of the two planes will be the U.S. position. 3 Acceptance of the briefly presented. reasonableness of the legality of the What are the unlllwful acts charged U.S. intervention and the independence against the United States? The charges of the Saigon regime strengthens con­ include: excessive use of aerial and siderably the already strong legal de­ artillery firepower resulting in the un­ fense of civilian relocation, for example. necessary death of civilians, unlawful The citizens of a cobelligerent do not relocation pf South Vietnamese civil­ enjoy the same protections from their ians, wanton destruction of property, allies that the civilians of an occupied and and murder of prisoners of nation should expect from the occupier. war. 51 A country's power to relocate its in­ habitants in order to prosecute a war is The first line of defense of a U.S. virtually unlimited. 5 4 The lack of military leader against charges of wide­ clamor concerning extensive relocation spread criminal activity in Vietnam is to activities in Kenya and Malaya is mute assert that many of the acts branded evidence of international acceptance of unlawful by the "war crimes publicists" such practices. One has to recognize are acts which are legally defensible only that the United States has a reason­ under the U.S. Government's interpreta­ able legal defense of its intervention, tion of the international law of war. without accepting that defense, in order What is not understood by most of the to undercut certain of the war crimes pu blic and is ~gnored by many of the charges. Relocation activities may also military's detractors is that the number be defended by recourse to the "Hos­ of criminal acts committed by U.S. tages case" at Nuremberg wherein the forces is a function of how one ad­ tribunal declared that the inhabitants of dresses four specific issues: the interna­ occupied territories may be relocated in tional legality of the U.S. presence in order to prosecute antiguerrilla cam­ Vietnam, the independence of the paignS.55 Saigon regime, the intent of the U.S. Intent is perhaps the major con­ military commanders in implementing sideration in the question of the use of certain courses of strategy and tactics, airpower and artillery. If the United and the reasonableness of the reply to a States intended to use air and artillery charge of conducting certain "unlawful to terrorize the peasantry or for re­ acts" that the acts were indeed lawful. prisals, as Neil Sheehan charges, then Telford Taylor acknowledged part of 5 such use would probably be illegal. 6 this matrix of issues in Nuremberg and 52 On the other hand, a military com­ Vietnam. mander may legally employ air and The legality of the American pres­ artillery firepower against a populated ence and the independence of the Sai­ area from which he is receiving fire or 5 gon' regime place the legal relationship which is offering armed resistance. 7 It of the U.S. forces to the South Vietna­ is unfortunate but not illegal if the mese citizens on a considerably dif­ commander unintentionally erred in his ferent basis than that which would judgment about the size of the force he obtain if the U.S. forces were occupying faced and caused excessive civilian South Vietnam following an invasion. casualties. Precise estimates of enemy The position that the U.S. Government strength are extraordinarily difficult in can offer on this issue is at least as fighting guerrillas in or near villages. strong as the position of the Govern­ Two snipers armed with Russian AK47 ment's detractors. Persuasive briefs automatic rifles can sound like a which a reasonable man should find platoon, thereby causing an opposing believable hav~ been written supporting pIa toon commander to decide he needs 410 fire support to neutralize the enemy establish that a has been opposition. commi tted. ,,6 0 The natural tendency of battlefield The important point is that an in­ commanders is to take steps to avoid formed and objective observer, viewing excessive casualties to their own units the battlefield, would not perceive as through the employment of all fire­ many unlawful acts as Richard Falk power means available to them. Ad­ might see. The informed and objective mittedly, such practices can produce observer would understand the intent counterproductive results in guerrilla behind many of the actions that others wars, but it is international legality and might consider unlawful and the specific not effectiveness of counterinsurgency context within which they occurred. practices with which we are concerned. Hence, it is a Procrustean feat to charge This tendency to minimize battlefield that the military leaders are guilty of casualties results, to some extent, from war crimes because so many war crimes the responsibility felt by American took place that they must have known leaders to account to the American of them and perhaps ordered them. public for the lives of their sons. Lest Battlefield actions which in Richard anyone assert that manifestations of this Falk's view are criminal may seem law­ tendency in Vietnam are evidence of ful and necessary, even if tragic, to the racist attitudes toward "inferior knowledgeable officer. . peoples," on$ need only recollect the It must be noted that the previously extravagant artillery and tactical air­ described defense of the military is power the United States employed asserted only within an admittedly nar­ against the Germans in Western Europe row framework of international law in 1944-1945. since it is within this framework that In their concern with civilian casual­ the military's critics purport to operate ties, the media representatives have lost as they accuse the United States of war sight of the fact that international law crimes. The paper does not attempt to provides only the most rudimentary reply on the more transcendent moral protections to civilians caught in the plane. midst of combat operations. Although The second part of the reply of the civilians enjoy an immunity from direct American military leader to the charge attack, it is not an absolute immunity. of war crimes would be to assert the The law of war acknowledges that the number of actions taken to prevent war killing and wounding of civilians is often crimes. General Westmoreland, General an incidental aspect of the lawful con­ Abrams, and the entire military chain of duct of military operations. Incidental command can establish an active de­ injury to civilians is not unlawful so fense by demonstrating the steps taken long as it does not violate a mandatory in war crimes prevention-a case which rule of the law of war, is justified by the none of the German or Japanese gen­ rule of necessity, and the suffering erals could argue. Space limitations pre­ caused is not disproportionate to the clude full development of the U.S. 5 military advantage gained. 8 Even the defense, but the outline will be more recent Draft Rules for the Limita­ sketched. The Vietnam participant can tion of the Dangers Incurred by the expand this from his own experience. Civilian Population in Time of War From the early days of the buildup specifically recognize the limited nature of U.S. ground forces, the J\merican of the immunity enjoyed by the civilian command in Saigon took strong, active 5 population. 9 As Telford Taylor puts it, steps to minimize civilian casualties. The "The death of an infant in consequence command action proceeded along three of military .operations ... does not dimensions; (1) command policies 411 passed through the chain of command, martial where appropriate. During the (2) briefings for the individual soldier, period 1965 to 1971, investigated al­ and (3) investigation of apparent unlaw­ legations of war crimes or of offenses of ful acts and punishment of perpetrators. violence against Vietnamese nationals Perusal of the Military Assistance Com­ resulted in the conviction of 176 U.S. mand Vietnam (MACV) files indicates Army personnel and 22 sentences of life that minimization of civilian casualties, imprisonment to members of all ser­ treatment of enemy prisoners, and the vices.64 Some of the more sensational rules of engagement which govern fire­ press stories about atrocities have re­ power use were major concerns of the sulted from evidence introduced at U.S. commander. The records of the courts-martials. The fact that individuals commanders' conferences held by Gen­ were court-martialed for the offenses eral Westmoreland contain periodic was underplayed in the rush to describe 6 warnings to this effect. 1 The policies "current military practices. ,,65 and rules of engagement have been declared "virtually impeccable" even by Conclusion. What conclusions can be Telford Taylor62 and were eulogized by drawn from this analysis? First, the legal a representative of the International realities of the Yamashita case differ Committee of the Red Cross who pro­ considerably from the public percep­ nounced the MACV policy for the tion. Contrary to references in recent handling of POW's, " ... a brilliant ex­ books and articles, the Yamashita case pression of a liberal and realistic atti­ did not establish a standard of absolute tude.,,63 Commanders' conferences command responsibility wherein a com­ down to division level usually included mander could be held criminally liable similar admonitions concerning civilian for the actions of his command even if casualties, handling of POW's, and the he was ignorant of their transgressions rules of engagement. or was unable to influence them. The A second aspect of U.S. policy con­ Military Commission which tried Gen­ cerns the briefs received by individual eral Yamashita heard evidence which soldiers. Each soldier arriving in Viet­ directly linked him to the knowledge of nam received from his unit a briefing offenses committed by his troops. On concerning the rules of engagement, the basis of this evidence, the Commis­ attitudes toward civilians, and the sion found Yamashita gUilty of failing handling of prisoners of war. More to control his subordinates. The case importantly, he was issued two small represents a reasonable standard of com­ wallet-sized cards called, "Nine Rules" mand responsibility which states that a and "The Enemy in Your Hands." The c·ommander can be held liable for the "Nine Rules" stressed the necessity to actions of his troops if he knows of maintain a humane attitude toward the them or blatantly ignores them and fails Vietnamese people. "The Enemy in to take appropriate action. Your Hands" reiterated in simplified The Nuremberg Subsequent Proceed­ terms the provisions of the Geneva ings provide a clearer example of limited Convention concerning the handling of command responsibility consistent with prisoners of war. Many commanders of this paper's view of the Yamashita case. combat units regularly inspected their The Court in the "High Command case" commands to ensure retention of these was quite explicit in its rationale. The cards. judgment stated that dereliction must Finally, one must take note of the be personal and knowledge must be punitive aspects of U.S. policy. MACV's shown in order to convict commanders policy required investigation of all alle­ for the offenses committed by their gations of uljllawful acts and courts- command. In view of the judicious and 412 restrained nature of the Nuremberg u.s. generals and their accusers con­ trials and the expansive rationale of­ cerning Vietnam. The generals probably fered by the court, why is it that the wish they had been more efficient in war crimes publicists feel compelled to preventing unlawful actions. The ac­ apply their version of the Yamashita cusers seem to be demanding perfection. case to U_S. conduct in Vietnam? The Resolution of this dilemma lies in the teachers and students of international question of "intent." law need to reconsider such actions. The Falks and the Sheehans seem to The war crimes trials examined in forget that culpability in war crimes this paper offer a reasonable and fairly often hangs on "intent." The legal unambiguous standard concerning com­ defense available to u.s. leaders com­ mand responsibility under the interna­ bined with a genuine demonstrated in­ tional law of war. A commander is tent to minimize civilian casualties responsible for the actions of his sub­ provides a defense of such strength that ordinates. He is required to take steps to it strains the imagination of a knowl­ prevent war crimes, to halt their con­ edgeable observer to visualize any senior tinuation when he discovers them, and U.S. military leader being convicted to punish the wrongdoers. He would be under the Nuremberg precedent for U.S. found guilty if he knew of crimes practices in Vietnam. committed by members of his command Three conclusions emerge. First, the or had reaso~ to know of them and so-called Yamashita principle does not failed to take the requisite action. The exist legally. Second, the Nuremberg tribunals left unanswered the degree of trials established a standard of com­ efficiency required from the com­ mand responsibility which demands mander in preventing war crimes, in proof of personal negligence or personal discovering information about them, participation. Third, the U.S. military and in punishing wrongdoers. In many actions in Vietnam are backed by a solid ways, this is the core issue between the defense of policy, deeds, and intent.

FOOTNOTES

1. As reported by Neil Sheehan in "Taylor Says by Yamashita Ruling Westmoreland May Be Guilty," The New York Times, 9 January 1971, p. 3: 1. 2. Telford Taylor, Nuremberg and Vietnam: 1\11 I\IIlC'riCillI Tmgedy (Chicago: Qundl':lIlglc Books, 1970), p. 182. 3. United Nations War Crimes Commissions, Lalv Reports of Trials of Wilr Criminals (London: H.M. Stationery Off., 1947-1949). See volume VIII for the "Hostages Case" and volume XII for the "High Command Case." (Hereafter referred to as UN Law Reports.) 4. See foot,notes 42, 43, 46 and 47 infra. 5. Taylor, p. 13-14. 6. See UN Law Reports, v. IV, for a complete discussion of the Yamashita case. 7. Ibid., p. 4-6. 8. Ibid., p. 34-35. 9. Ibid., p. 17. 10. Ibid., p. 84. 11. Ibid., p. 19-20. 12. Ibid., p. 35. 13. Ibid., p. 34. 14. Ibid., p. 35". 15. Ibid., p. 19-20. See also footnote 20 infra. 16. General Headquarters, U.S. Army Forces, Pacific, Office of the Theater Judge Advocate, Review of the Record of Trail by a Military Commission of Tomoyuki Yamashita, General, , 26 December 1945. (Hereafter referred to as Review.) 17. Ibid., p. 6465. 18. Taylor, p. 91-92. 413

19. Review, p. 71-73, 81. 20. Ibid. 21. Ibid., p. 78. 22. Ibid., p. 74. 23. Ibid., p. 81-83. 24. In Re Yamashita, 327 U.S. 14-16. 25. Ibid., p. 17. 26. John P. Frank, Marble Palace, the Supreme Court in American Life (New York: Knopf, 1958), p. 136-137. 27. In Re Yfmashita. 28. Ibid., p. 40. 29. Ibid., p. 45. 30. Ibid., p. 61. 31. Ibid., p. 13-23. 32. Taylor, p. 91-92. 33. In Re Yamashita at 28,34,47,53·55. 34. A. Frank Reel, The Case of General Yamashita (Chicago: University of Chicago Press, 1949). 35. Taylor, p. 91-92. See also Homer Bigart, "Medina's First Juror Tentatively Accepted as Mylai Court Martial Opens," The New York Times, 27 July 1971, p. 5:1; Peter Braestrup, "Jury Head Selected for Medina Trial," Washington Post, 27 July 1971. 36. UN Law Reports, v. IV, p. 18-20; Review, p. 71-73. 37. In Re Yamashita at p. 28. 38. John A. Appleman, Military Tribunals and International Crimes (Indianapolis: Bobbs­ Merrill, 1954). 39. See UN Law Reports, v. XII for an analysis of "High Command Case." The case is reported in detail in Germany (Territory under Allied Occupation 1945-U.S. Zone) Military Tribunals, Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.1 0, Nuremberg October 1946-November 1949 (Washington: U.S. Govt. Print. Off., 1951), v. X and XI. (Hereafter referred to as Trials of War Criminals.) 40. Ibid., v. X, p. 29-37, 44-47, 125-138. 41. Ibid., v. X, p. 1090-1101. 42. Ibid., v. XI, p. 333-334. 43. Ibid., v. XI, p. 553-563, 695, 698. 44. Ibid., v. XI, p. 543-544. 45. Ibid., v. XI, p. 545. 46. Ibid., v. XI, p. 555. 47. Ibid., v. XI, p. 558. 48. See UN Law Reports, v. VIII, for an analysis of the "Hostages Case." The case is covered in detail in Trials of War Criminals, v. XI. 49. Trials of War Criminals, v. XI, p. 1269, 1275. 50. See the discussions contained in Edwin Knoll and Judith McFadden, cds., Wolr Crilllt'S and tbe American Conscience (New York: Holt, Rinehart and Winston, 1969). 51. Neil Sheehan, "Should We Have War Crimes Trials?" The New York Times Book Review, 28 March 1971, p. 1-3, 30-34; Lawrence C. Petrowski, "Law and the Conduct of the Vietnam War," Richard A. Falk, ed., The Vietnam War and International Law (Princeton, N.J.: Princeton University Press, 1969). 52. Taylor, p. 131, 133-134, 146,177. 53. As examples, consider: John Norton Moore, "The Lawfulness of Military Assistance to the Republic of Vietnam," American Journal of International Law, January 1967, p. 1-34; Leonard C. Meeker, "Viet-Nam and the International Law of Self Defense," Department of State Bulletin, 9 January 1967, p. 54; Roger H. Hull and John C. Novogrod, Law and Vietnam (Dobbs Ferry, N.Y.: Oceana, 1968). 54. Article 4 of the 1949 "Geneva Convention Relative to the Protection of Civilian Persons in Times of War," (TIAS 3365), U.S. Treaties, etc. (Washington: U.S. Govt. Print. Off., 1956), v. VI, pt. 3, p. 3520 (hereafter referred to as "Geneva Civilian Convention") states: "Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals." 55. Trials of War Criminals, v. XI, p. 1249-1250. In addition, article 49 of the 1949 Geneva Civilian Convention states: ..... the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand." 414

56. Sheehan. "Should We Have War Crime Trials?" 57. Lassa F.L. Oppenheim, International Law: A Treatise, 7th ed., H. Lauterpacht, ed. (London: Longmans, Green, 1952), v. II, p. 346, 525; Trials of War Criminals, v. XI, p. 541, 1253-1254. 58. W. Solf, "A Response to Telford Taylor's Nuremberg and Vietnam: An American Tragedy," University of Akron Law Review, v. V, no. 1, p. 49-50. 59. International Committee of the Red Cross, Draft Rules for the Limitation of the Dangers Incurred by the Civilian PopUlation (Geneva: 1956). 60. Taylor, p. 135. 61. See Report of the Department of the Army Review of the Preliminary Investigation into the My-Lai Incident, March 1970, p. 9-14, 9-15, (hereafter referred to as the Peers Report) for discussions of command emphasis. For example, at the commanders conference at Nha Trang on 24 October 1965, General Westmoreland cautioned his subordinates about minimization of civilian casualties at four different points in his remarks as he discussed: indoctrination of U.S. troops, issuance of the "Nine Points" card, the report of a board formulating Rules of Engagement, and the use of prudence in the employment of naval gunfire support. This set of remarks was characteristic of those used at other commanders conferences. 62. Taylor, p. 168. 63. Gardner M. Haight, "The Geneva Convention and the Shadow War," United States Naval Institute Proceedings, September 1966, p. 47. 64. An informal review of records of trial by general court-martial and those special courts-martial authorized to adjudge a bad conduct discharge received by the U.S. Army Judiciary as of approximately 1 June 1971 reveals that from 1965 to the date of the survey, 176 U.S. Army personnel had been convicted of offenses in which the victim was identified as a Vietnamese. At the time of Calley's conviction, the New York Times News Service reported that Calley was the 22d U.S. serviceman sentenced to life imprisonment for the premeditated murder of a Vietnamese civilian. See also statistics at Solf, p. 67. 65. See Daniel Lang, Casualties of War (New York: McGraw-Hill, 1969) which also appeared in the 18 October 1969 issue of . Book reviews and accounts of this tale of rape and murder seldom mentioned the fact that the tale was told from the court-martial records. See Taylor, p. 134. ---- tp -----