Justice During the War

American involvement in the war in Vietnam was the result of Cold War politics. After World War II the United States supported its ally France in French attempts to regain former colonial possessions in Indochina. In 1954, when the French left Indochina after the siege at Dien Bien Phu, the Eisenhower administration gave full backing to a pro-American South Vietnamese dictatorship. Subsequent administrations increased American commitment in Vietnam.

The war in Vietnam raised significant political and social justice issues, including the constitutional powers of the presidency, free speech, the composition of the armed forces, and the reintegration of veterans into society.

American involvement in the war in Vietnam was the result of Cold War politics. After World War II the United States supported its ally France in French attempts to regain former colonial possessions in Indochina. In 1954, when the French left Indochina after the siege at Dien Bien Phu, the Eisenhower administration gave full backing to a pro-American South Vietnamese dictatorship. Subsequent administrations increased American commitment in Vietnam.

The Powers of the Presidency

On August 7, 1964, Congress approved the so-called Gulf of Tonkin Resolution, the U.S. government’s response to an alleged attack by North Vietnamese patrol boats on U.S. naval vessels in the Gulf of Tonkin, off the coast of North Vietnam. The resolution authorized President Lyndon B. Johnson to take “all necessary measures to repel any armed attacks against the forces of the United States and to prevent further aggression” and to “promote the maintenance of international peace and security in Southeast Asia.”

Johnson used the resolution as a blank check to expand American involvement in the conflict. By essentially forfeiting its constitutional right to declare war, Congress had made it possible for Johnson and, later, Richard Nixon to expand the U.S. commitment of equipment and troops. In the spring of 1970, the Nixon administration went so far as to bomb two neutral countries, Cambodia and Laos, because the Viet Cong were transporting arms through both countries into South Vietnam and maintained supply bases within their borders. At that point, the Senate repealed the 1964 resolution. On January 27, 1973, the United States and North Vietnam signed a cease-fire agreement, mandating the withdrawal of all remaining U.S. troops within sixty days.

Reacting to the Vietnam experience, Congress passed the War Powers Act on November 7, 1973, which limited deployment of troops without notification of Congress to sixty days. The act was intended to define and circumscribe the powers of the president when acting as the commander in chief of the armed forces.

Opposition to the War

Demonstrations against the war began in earnest in 1965, along with the first burning of a draft card in protest of the war. Many of the early demonstrations against the war were organized by Students for a Democratic Society (SDS), and opponents of the war were generally dismissed as leftists and college radicals. As American involvement in Southeast Asia increased, however, opposition to the war drew wider and wider circles, until it involved people of all ages and walks of life. The war began to polarize American society. Riots occurred in Chicago in 1968 during the Democratic presidential convention; the rioting was later determined to have been provoked by the local police in a “police riot.” Nevertheless, the U.S. Department of Justice leveled conspiracy charges against Rennie Davis, Dave Dellinger, Tom Hayden, Abbie Hoffman, Jerry Rubin, John Froines, Lee Weiner, and Bobby Seale, dubbed the “Chicago eight.” (The “Chicago seven” trial did not include Bobby Seale, who was tried separately.)

Drawing on his fame as the author of Dr. Spock’s Baby and Child Care, Dr. Benjamin Spock (center front) led many demonstrations to protest American involvement in Vietnam and was frequently arrested. Here, he leads a march in New York City in April, 1965, at a time when the war was starting to be noticed by the average American. (Library of Congress)

Particular events in the war, as they were reported in the press, fueled antiwar protests and increased the ranks of protesters. One such event was the March, 1968, massacre of civilians at the village of My Lai, which became public knowledge in the fall of 1969 when Lieutenant William Calley was charged with murdering more than a hundred Vietnamese civilians; photographs of the atrocity were printed in Life magazine. Another was the American bombing of Cambodia and Laos in 1970. In May, 1970, protests against the bombing were disrupting classes at Kent State University in Ohio, and Governor James Rhodes ordered the state’s national guard to patrol the Kent State campus. On May 4, National Guardsmen opened fire, killing four students. In response to the Kent State deaths, five hundred college campuses and four million students across the nation went on strike.

The Draft

Conscription (the draft) and the Selective Service system were among the main targets of the war’s opponents. The most attention-getting way to show opposition to the war and the draft was the burning of draft cards. Prosecution of draft card burners was inconsistent. While during the height of resistance hundreds of men burned their cards publicly, the Justice Department brought action against fewer than fifty draft card burners, and only forty were actually convicted. Many observers expected the courts to overturn those convictions. In the 1968 case United States v. O’Brien, however, the Supreme Court upheld the law against draft card burning even though the decision seemed to run counter to decisions in other freedom of speech cases.

Among opponents of the draft, conscientious objectors (COs) created the most sustained legal problems. The Selective Service system tended to treat conscientious objectors–individuals who are excused from combatant military service, traditionally for religious reasons–inconsistently, often failing to follow due process of law. Many COs were Jehovah’s Witnesses, Quakers, Mennonites, and others whose religious beliefs included strict pacifism. As the war progressed and the death toll rose, interest in becoming a CO rose drastically. In the mid-1960’s, the military approved fewer than 30 percent of the several hundred applications for CO status it received. By the late 1960’s, CO applicants attempted to take advantage of existing case law pertaining to civilian COs. The military, however, continued to reject CO applications, overlooking precedents in the case law. In 1970, the Supreme Court ruled in Welsh v. United States and two other cases that its 1965 decision in United States v. Seeger applied to members of the military as well as civilians. The Supreme Court had ruled in Seeger that sincere pacifists were entitled to CO status even if their motivation had no foundation in religious beliefs. The courts further ruled that the military could not reject the CO application of a person who was already a member of the service unless the military could point to factual evidence in his or her military record to support the conclusion that the applicant did not have sincere motives. Soon the number of successful CO applications rose, and the military faced a growing number of lawsuits. In 1971 and 1972, two-thirds of CO applications were successful.

Whether draft evaders (as well as soldiers who went AWOL, or “absent without leave”) should be prosecuted or given clemency became a growing debate as American involvement in the war came to an end. After 1973, when the United States signed a cease-fire agreement with North Vietnam, the call for clemency no longer fell on deaf ears. In 1974, President Gerald R. Ford created a President’s Clemency Board. Considering the generally lenient treatment of draft offenders by then, the Ford program actually offered little improvement; only 2,600 people applied. Another 265,650 received pardons from President Jimmy Carter in 1977.

Military Service and Social Justice

The administration of the draft itself raised issues of social justice. Of 26,800,000 men of draft age, 15,980,000 never served. Of these, 15,410,000 were deferred, exempted, or disqualified. Of 570,000 draft offenders, 209,517 were accused; 197,750 cases were dropped, 3,250 people were imprisoned, and 5,500 received probation or a suspended sentence. Among those who escaped the draft were recipients of deferments (mostly student deferments), draft evaders, nonregistrants, and conscientious objectors. The fact that potential draftees could receive student deferments while attending college struck many observers as unfair, given that the young people likely to be in college were disproportionately white and middle- or upper-class.

For those who served, issues of social and racial justice played a significant role. Among the American forces stationed in Vietnam, fewer than 1 percent were ever needed for combat missions, but that 1 percent was most likely to consist of minorities from disadvantaged backgrounds. Front-line combat personnel were, on average, a cross section of American minorities. In addition, soldiers of low-income background were about twice as likely to serve in Vietnam and about twice as likely to end up in combat service than soldiers from high-income backgrounds.

Agent Orange

Many of the soldiers who went to Vietnam came home with new problems, such as drug dependencies and posttraumatic stress disorder (PTSD). Those afflicted with PTSD had extraordinary difficulties reintegrating into civilian life. In addition, severe health problems were experienced by those soldiers who had been exposed to an herbicide called Agent Orange, which contained the highly toxic chemical dioxin. During the war, American planes sprayed nearly thirteen million gallons of Agent Orange. The herbicide created health problems for those with significant exposure to it, and it caused birth defects in their children.

The government, Dow Chemical (the principal supplier of Agent Orange), and other companies involved were aware of the possibly fatal consequences of exposure to dioxin but ignored or publicly denied them. The Veterans Administration downplayed the effects of Agent Orange and dismissed veterans’ complaints for many years. Veterans had little legal recourse against the Veterans Administration, since federal law barred them from taking Veterans Administration benefit decisions to court.

In 1983, veterans and their families brought a class action suit. Long Island U.S. circuit court judge Jack Weinstein decided against Dow and a number of other makers of Agent Orange, forcing the companies to release crucial documents proving that Dow and others acted in full knowledge of the possible health consequences of the substance. In May, 1984, the involved parties reached a settlement which created a $184 million fund. Dow and the other companies involved appealed the case. In 1989, the U.S. Agent Orange Settlement Fund finally began distributing funds. On average, single lump-sum benefits ranged between $340 and $3,400. By 1993, about sixty-five thousand claims had been filed. By December 29, $22 million was left in the fund, and the claim deadline was extended from December 31, 1994, to January 17, 1995.

In February, 1994, events took another turn when the Supreme Court in Ivy v. Diamond Shamrock and Hartman v. Diamond Shamrock denied review of cases requesting reopening litigation by two groups of Vietnam veterans and their families. In both cases, the veterans had received benefits but in amounts considered insufficient. On the other hand, the Court has agreed to hear arguments by Hercules and William T. Thompson, two companies that made the herbicide, who were seeking $30 million in costs in relation to the 1984 class action suit. The companies claim that it was not their fault that the government used the defoliant in Vietnam, thereby exposing humans to the toxic chemical dioxin.