The Anatomy of the Nuremberg Trials: A Personal Memoir.

Almost a quarter century ago, in the March 1970 issue of The Progressive, a headline posed an arresting question: Must We Hang Nixon, Too? The author whose article appeared under that head, A. Frank Reel, had served as defense counsel for Japanese General Tomoyuki Yamashita, who was tried, convicted, and hanged in the first of the war-crimes prosecutions that followed World War II.

Telford Taylor, in his engrossing recollection of the Nuremberg war-crimes trials, alludes only briefly to the Yamashita case. Yamashita, he notes, was charged with "failing to prevent his troops from massacring numerous Filipino civilians. There was no specific allegation that Yamashita had ordered these atrocities, or even that he knew at the time that they were in process, or that he could have stopped them had he known. On such a record, the indictment of a German general, much less the conviction and execution imposed on Yamashita, would have been highly unlikely. Apparently, in old-line military circles yellow generals did not rank as high in the scale of virtue as Nordic white ones."

What prompted Reel's article early in 1970 was the then-recent disclosure of the massacre of civilians by a U.S. infantry unit at the Vietnamese village of My Lai. Under the Yamashita and Nuremberg precedents, Reel argued, President Nixon and other high U.S. military and civilian officials were subject to indictment and trial for crimes against humanity.

At about the same time--early in 1970--the young Daniel Ellsberg, not yet famous for disclosing the Pentagon Papers, reached a similar conclusion while pondering his own role as a U.S. official helping to prosecute the war in Vietnam. "Some ten years ago," Ellsberg told a conference I attended, "I read the transcript of the Nuremberg trials, and that left me with the sense of what an exhibit in a war-crimes trial looks like. As I was working in the Department of Defense, I did in some cases have a feeling while reading documents late at night that I was looking at future exhibits. Indeed, if we are to believe published accounts of contingency plans that have been prepared, for example, for war in Central Europe (such as might arise over Berlin), there even exist in locked safes in Washington right now documents that could very aptly be described as plans for escalatory genocide."

But Richard Nixon was not hanged--or even tried--for his conduct of the criminal war in Vietnam; it was his role in the burglary at the Watergate that drove him from office. And Henry Kissinger, who probably came closer than any other American to meeting the definition of war criminal established at Nuremberg, received the Nobel Peace Prize.

Brigadier General Telford Taylor, who served as U.S. chief prosecutor at the Nuremberg trials, also attended the conference at which I heard Ellsberg speak. I remember Taylor as a man of earnest rectitude who seemed sincerely troubled by assertions--from many besides Ellsberg--that the United States was committing the kinds of atrocities in Vietnam for which the Nazi leaders had been tried. "I doubt that much is accomplished," Taylor said, "by describing everything that is going on in Vietnam as criminal in terms of Nuremberg."

But if the Nuremberg trials did not achieve what everyone hoped they would at the end of World War II--set a new standard of conduct among warring nations that would put out of bounds the most barbarous and vicious acts--what did they accomplish? Taylor, who waited more than forty years to write this "personal memoir" so that he could arrive at a judicious evaluation, is convinced that the trials were "absolutely necessary" as a response to the Nazi horrors. And though he believes that some of the Tribunal's actions and conclusions were unwise, he gives the process a generally positive assessment. "The defendants and their fates were not the reason why Nuremberg has remained a benchmark in international law and the lodestar of thought and debate on the great moral and legal questions of war and peace," Taylor writes.

But the most interesting material in The Anatomy of the Nuremberg Trials is not the legal doctrine he elucidates or the moral issues he explores, but Taylor's inside look at this extraordinary drama: the conflicts among the four prosecuting allies (the United States, Britain, France, and the Soviet Union); the squabbles among prosecutors and judges--sometimes over trivial questions but sometimes not; the personalities of the repulsive defendants. Taylor tells us for the first time, so far as I can tell, how Hermann Goering obtained the poison pill he used to cheat the Nuremberg hangman. (It was provided by a U.S. Army officer.)

Taylor's book is long and detailed, but it makes for brisk reading. And he gives the Nuremberg trials the best defense they could possibly have. It's not his fault that history has betrayed the judgment at Nuremberg--by proving conclusively, for example, that the Soviets, who were among the most zealous prosecutors and most vengeful judges at Nuremberg, also committed one of the most terrible crimes of World War II, the massacre at Katyn Forest. Like the American generals who insisted on prosecuting General Yamashita, the Nuremberg judges exacted, despite their lofty claims, what can only be called victor's justice.

But there is another problem with the Nuremberg ideal as ably defended by Telford Taylor, and Frank Reel put his finger on it back in 1970. "The war-crimes trials after World War II," he wrote in The Progressive, "supported the theory that there are good ways to fight a war and bad ways to fight a war; that there are nice ways to kill and naughty ways to kill; even the slaughter of babies is acceptable if we are sufficiently revolted by the policies of the political leaders of the parents of those babies. To pretend that we are furthering the cause of domestic tranquility and international justice by punishing the 'criminal means' of conducting a criminal enterprise is not only irrelevant but it is dangerous. Its deterrent effect is nil."

If you have doubts about that, just contemplate the history of these last four-and-a-half decades.