Military Law: What Is a War?

Is the U.S. technically at war in Viet Nam? The question has been raised frequently in courts of law; just as frequently the courts have sidestepped the issue. Now the Court of Military Appeals—three civilian judges appointed by the President—has faced the problem squarely. In a decision reviewable only by the Supreme Court, it has ruled that the U.S. is definitely at war.

The question arose in the case of Army SP4 Clayton Anderson, a 14-year veteran who went AWOL while stationed at Fort Polk, La., in November 1964. Anderson turned himself in on February 10, 1967, and was eventually found guilty of "unauthorized absence." But under the Uniform Code of Military Justice, the statute of limitations for prosecution of an unauthorized absence is two years—except "in time of war." Congress, said Anderson's lawyers, has yet to declare war. The peacetime statute of limitations had run out before their client was tried. Therefore he should be freed.

The Fact Remains. All three judges disagreed—and each had different reasons. Chief Judge Robert E. Quinn was satisfied that the Gulf of Tonkin resolution, passed by Congress in August 1964, was equivalent to a declaration of war. "The language," he said, "clearly indicates that Congress recognized and declared that the Gulf of Tonkin attack precipitated a state of armed conflict." Judge Paul J. Kilday did not think the Tonkin resolution constituted a declaration of war, but he did think that "abundant authority exists to make clear that a condition of war between states may exist without a formal declaration." For precedents, he began back in 1800 when Supreme Court Justice Bushrod Washington (nephew to George) held that some minor naval skirmishing between France and the U.S. amounted to a state of war.

The third judge, Homer Ferguson, thought the Tonkin resolution totally beside the point. "Regardless of the resolution," he said, "the fact remains that we are at war." It is enough to know that hundreds of thousands of U.S. servicemen are in combat in Viet Nam. Just how many G.I.s make a war he did not say. Presumably, the number in 1964, when Anderson committed his crime, was more than enough.

Life to Death. Whatever their varied reasons, the judges' unequivocal conclusion affects far more military men than SP4 Anderson. For military law changes in time of war. The maximum penalty for desertion, for example, rises from life imprisonment to death. Assaulting or disobeying a superior also becomes punishable by death. While the Anderson decision applies only to military courts, its effective marshaling of precedents is likely to persuade the civilian courts to agree that the U.S. is indeed in a war—even if Congress never does get around to declaring one.