Re: Forwarded from Anthony (query)

["LouPaulsen" <LouPaulsen@xxxxxxxxx>]

----- Original Message -----
From: "Louis Proyect" <lnp3@xxxxxxxxx>


> A question about the death penalty for desertion from the US military. The
> quote posted by Lou Paulsen says, "Any person found guilty of desertion or
> attempt to desert shall be punished, if the offense is committed in time
of
> war, by death or such other punishment as a court-martial may direct ..."
>
> I wonder how the military code defines "time of war", does this mean a war
> constitutionally declared by an Act of Congress? Or does it refer to any
> armed action by the USA?
>
> Anthony

http://sja.hqmc.usmc.mil/jam/Time%20of%20War.doc

According to the Word document at the above URL, it's not entirely a simple
question.  The UCMJ itself does not define 'time of war' (I believe).  In
practice,

- it certainly refers to wars declared by Congress.

- it can also refer to situations in which the President has made a
'determination' that the country is in 'Time of War'.  This was the case in
the Korean conflict.

- even in the case of an undeclared war, when the President has not made a
determination, the court itself could determine that an offense happened in
"time of war".  This was the case in the Viet Nam conflict, if I am reading
this right.  There are supposedly 'principles' governing whether the
military courts would determine whether a situation is in 'time of war' or
not, but I haven't found them yet.

This link:
http://www.law.yale.edu/outside/html/Public_Affairs/140/katyal.pdf

gives some caselaw relating to the 'military tribunals' question but also
bearing on the 'time of war' issue.  The Averette case found that a
different section of the UCMJ, which says that civilian employees of the
armed forces can be subject to military justice 'in time of war', refers
only to declared wars.  However, that was a different article of the Code
and may not apply at all to enlisted personnel.  The key issue was that
civilian employees should not have been found to have turned over their due
process rights to the military merely on the basis of a 'determination' that
it was 'time of war'.

I get the impression that in the post-Viet Nam period the armed forces have
mostly not tried for 'time of war' enhanced penalties because they didn't
want to test what 'time of war' meant.  I am certain, however, that this
war, in this political climate, would be found to be 'time of war' for the
purposes of punishing deserters.

lp





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