KERREY'S CULPABILITY : Vietnam & the just-war tradition.

Last month," Sixty Minutes II" aired a program in which Gerhard Klann claimed that on February 25, 1969, former Senator Bob Kerrey commanded and participated in the systematic murder of civilians at Thanh Phong in Vietnam. Klann, who was the most experienced member of Kerrey's seal team, insists that Kerrey personally helped him slit an old man's throat and then later ordered the killing of women and children. Klann's rendition of the events of that evening has been partially corroborated by two Vietnamese witnesses.

Kerrey has long acknowledged that things happened that night that he cannot exactly remember but would give anything to forget. As Gregory Vistica reports in the New York Times Magazine (April 29), "one thing is certain: around midnight on February 25, 1969 (at Thang Phong) Kerrey and his men killed at least thirteen unarmed women and children." According to Kerrey, his team was fired upon and he in turn directed his men to shoot into a hamlet but without any intent to harm noncombatants. Kerrey remembers feeling aghast when he learned that the people he killed were not exactly the Viet Cong fighters that were later registered in the body count. When Kerrey got home, he wept to his mother and his pastor about Thanh Phong. His remorse did not end there. In his Senate office, Kerrey kept a landscape painting inscribed with these thorny words from Emily Dickinson:

   Remorse is Memory awake,
   Her companies astir,--
   A presence of departed acts
   At window and at door.

   Its past set down before the soul,
   And lighted with a match,
   Perusal to facilitate
   Of its condensed dispatch.

   Remorse is cureless,--the disease
   Not even God can heal;
   For 'tis His institution,--
   The complement of Hell.

Aristotle teaches that we are not to be blamed for an action that results from an unavoidable ignorance of particular circumstances. He adds that remorse over the consequences of such an action is evidence of its being involuntary. Kerrey clearly is remorseful. But perhaps Aristotle was not Kierkegaardian enough to recognize a distinction between remorse and repentance. Though Kerrey now says that the medal he won for valor at Thanh Phong means nothing to him, he accepted the Bronze Star for his grizzly work. Haunted as he claims to have been, Kerrey does not seem to think that he is morally culpable for what happened. Just-war theory suggests otherwise.

In his Summa Theologiae, Thomas Aquinas provides the groundwork for much just-war theory. Developed by such thinkers as Grotius, Pufendorf, and in our own time Michael Walzer, this theory provides a moral framework for how soldiers should act in the chaos that is war. Everyone familiar with the just-war tradition agrees that a distinction must be drawn between combatants and noncombatants, for without this distinction war would not differ from terrorism. The intentional killing of civilians is proscribed, and so are military actions that show a gross disregard for the lives of innocents. Even on Kerrey's own murky account, he did not give a lot of thought at Thanh Phong to the possibility he was endangering the lives of civilians.

Writing in the Wall Street Journal (April 27), Senator John McCain (R-Ariz.), another highly decorated Vietnam veteran, proclaimed that Kerrey remained his hero. McCain added that unless you were there, you should not pass judgment on anyone's behavior in Vietnam. Apparently, if you were there you can't pass judgment either, as many of those who insist on the special moral circumstances of the Vietnam War seem to believe that everything was legal along the Ho Chi Minh Trail. After the Kerrey story broke, indignant vets entered the fray insisting that in Vietnam there was no distinguishing between combatants and noncombatants, especially in Viet Cong strongholds such as Thanh Phong. In certain sectors, they say, it was permissible to regard everyone, infants and grandparents included, as though they were grenade slingers. Vaguely defending his actions, Kerrey told a reporter, "There are people on the [Vietnam Memorial] Wall who died because they didn't realize a woman or child could be carrying a gun."

It is not hard to understand how soldiers fighting in a guerrilla war might come to view civilians in this way. But we cannot, I think, pretend to believe that in fighting such a war it is permissible to regard everyone not in a U.S. uniform as an enemy combatant. Or again, while we can understand how a soldier might panic and make murderous mistakes, both just-war theory and military manuals prohibit treating everyone in enemy territory as though he or she were attacking you with an AK-47. Kerrey's defense does a disservice to those soldiers--the vast majority, I suspect--who refused on principle to kill children. Kerrey was awarded the Congressional Medal of Honor for a subsequent engagement, one in which he lost most of a leg below the knee. No one has cast doubt on Kerrey's heroism in that instance. But by that same measure of gallantry, Kerrey did not hew to a standard of courage and moral discernment at Thanh Phong. Kerrey's Dickinson poem echoes the fact that he has for years wandered back and forth over the events of that night, wondering whether or not he should have done something differently. His ghosts are right. He should have resisted firing into Thanh Phong.

Bob Kerrey does not deserve a medal for what happened at Thanh Phong, but neither does he deserve to be villainized. We have known for a long time that American troops in Vietnam felt free to kill anything that moved. According to Kerrey, "We were instructed not to take prisoners." As William Pfaff has observed (Commonweal, May 18), "The truth that the United States has officially kept secret...is that atrocities against civilians were widespread in Vietnam, and were required by commanders because of the orders they were given by the government in Washington." But if Kerrey and other commanders were right to think that they were operating in so-called free-fire zones in which there was no distinction to be drawn between friend and foe, they still had an obligation to regard all the defenseless Vietnamese they encountered as prisoners of war, prisoners who possessed pertinent rights and were owed protections. Executing prisoners is also against the laws of war.

After many years of bitter controversy and division surrounding the U.S. involvement in Vietnam, that tragic conflict has of late drifted into a more peaceful place in our collective memory. Perhaps that sense of closure was premature. We owe it to the people buried at Thanh Phong to search our memory again. And we owe it to future generations of fighting men and women to consider the possibility that our guiding rules of conduct in that war were immoral.

Gordon Marino is associate professor of philosophy and director of the Hong/Kierkegaard Library at Saint Olaf College, Northfield, Minnesota.