This Article will contend that the law of war obligated Westmoreland to accept lower numbers for the military Order of Battle because the persons under consideration for inclusion were arguably noncombatant civilians entitled to the protections that the law of war reserved for nonbelligerents. To support this conclusion, this Article will first discuss the necessary distinction, as embodied in the law of war, between combatants and noncombatants. Next, it will discuss the circumstances of combat that Westmoreland discovered when United States forces entered the war to fight one-on-one with Vietnamese Communist units. It will then discuss Westmoreland's personal obligations under the law of war and present the record of his response to those obligations. Finally, this Article will conclude with an analysis of the controversy over who was to be included in the Order of Battle.
Neither CBS nor Westmoreland's other critics, on whom CBS relied for the accuracy of its allegations, ever expressed concern over application of the law of war to the the Order of Battle dispute. Westmoreland did express such a concern, and this concern guided his decision-making in the dispute.
The controversy over how Westmoreland's Command, the United States Military Assistance Command Vietnam (MACV), should have defined the enemy in the Vietnam War and estimated the enemy's strength arose in May 1967, when Major General Joseph McChristian, the MACV Chief of Intelligence Analysis and Assessment, proposed reporting sharply increased enemy troop strength. In particular, McChristian suggested reporting an increase in the number of Communist supporters in guerrilla and other irregular units.
Stephen B. Young,
Westmoreland v. CBS: The Law of War and the Order of Battle Controversy,
21 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol21/iss2/1