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Chennault and the Flying Tigers - Heroes, but were they legal?

By Richard L. Dunn © 2005

In the Global War on Terror insurgents and terrorists intentionally target civilians, murder humanitarian workers, behead captives and generally behave in barbaric and uncivilized fashion. Strangely, media coverage and commentary seems to focus disproportionate attention on alleged legal lapses in America's conduct of the war. These include whether the United States has improperly denied formal prisoner of war status to certain detainees, whether interrogation techniques violate norms some group or commentator thinks should apply, and similar allegations. Moreover, intelligence failures before the invasion in Iraq are ascribed to "lies" by the President of the United States and other officials and the legality of that action is questioned. These issues seem to resonate with certain politicians and a segment of the public. One wonders what would have happened if such scruples and scrutiny had been applied to the legality of U.S. actions before and during World War II. As a modest gesture toward such an inquiry this paper examines the legal status of Claire L. Chennault and the First American Volunteer Group—the Flying Tigers.

I. Legal Issues

The legal issues concerning the Flying Tigers examined here will be limited to three, namely, (1) whether members of the group placed their citizenship in jeopardy by joining the Flying Tigers; (2) their status under international law; and, (3) possible violation of the Emoluments Clause of the U.S. Constitution. Examination of these issues primarily involves a review of the statutes applicable to citizenship and nationality, the laws of war, and the cited clause of the U.S. Constitution.

At least some of these questions were on the minds of the men that volunteered to go to China. In a meeting prior to the departure of the first group of pilots to leave for China, one asked: "Won't we lose our citizenship if we fly against the Japanese at a time when we are not officially at war?" Chennault replied, "the president has assured us, as long as we fight for a country that professes democratic faith, your citizenship will remain intact. I might mention also that you will be officially part of the Chinese military so you won't be classified as war criminals if you are captured."

Interestingly, the citizenship question seemed most on the minds of some of the men. Although the men signed employment contracts before leaving the United States, once in Asia they had "to sign a slip offering [their] services to the Chinese government. There were some that refused to sign this slip thinking that ... [they] might lose their citizenship..." (Quotations from Howard, Roar of the Tiger).

II. What were the Flying Tigers?

The "First American Volunteer Group" was constituted effective 1 August 1941 under an order of the Chinese government signed by Chaing Kai-Shek. According to the order "Col. Chennault will organize this group with the American Volunteers now arriving in China to participate in the War." Although the group was organized after negotiations with the Chinese Commission on Aeronautical Affairs, once in operation the group was not subject to the authority of the Commission.

In 1941 military aviation in China was divided between the Commission on Aeronautical Affairs and the Chinese Air Force. Both reported to the Commission on Military Affairs of which Chaing Kai-Shek was the chairman. In his capacity as commander of the AVG Chennault also reported directly to Chaing. The AVG received support from the Chinese Air Force but the relationship was one of coordination rather than command. The AVG was not within the chain of command of the Chinese Air Force and in this sense "American Volunteer Group of the Chinese Air Force" is something of a misnomer.

There is some ambiguity as to Chennault's status. The reference to "Col. Chennault" in the AVG's organizing order suggests that Chennault held the rank of Colonel in some military force. Chennault was a retired regular officer of the U.S. Army Air Corps. He retired in the grade of Captain. He held no U.S. rank higher than that until he was returned to active duty in mid-1942. In China Chennault seems to have adopted or been granted "Colonel" as his title. In January 1942 it was rumored that he had become a Brigadier General in the Chinese Air Force. No documentary evidence to support such an appointment has come to light. Chennault signed AVG correspondence as "C.L. Chennault, Commanding" without appending any rank. Chennault himself professed to have been a civilian advisor to the Chaings while working for them. Chinese who knew him in China asserted he was never commissioned in the Chinese Air Force. The best evidence is that Chennault was a civilian employee or consultant to the Chinese government, a relationship that was apparently a matter of contract rather than any "appointment."

The bulk of the Americans serving in the AVG came primarily from two sources, former enlisted men in U.S. service that had been released from their enlistments and reserve officers that had resigned their commissions. Most of the pilots were in the latter category. There were some exceptions. One pilot was a former Marine Corps regular officer who had resigned (Boyington) and another pilot was a former navy non-commissioned officer (Hoffman). Staff officers and some of the ground personnel came from a variety of sources. All became employees of the Central Aircraft Manufacturing Company - Federal, Inc. (CAMCO). Each signed an employment contract that specified their salaries and benefits. The contract was something of a charade in that it did not mention the real purpose of their employment nor did it state that CAMCO was acting as an agent for the Chinese government. However, the contract was the formality for membership in the AVG and the employment relationship it established was the basis for "control" over AVG personnel.

At the time of their service in the AVG none of the personnel were members of either the U.S. or Chinese military and they were subject to neither the rules of discipline nor court-martial jurisdiction of those services. Despite this the AVG resembled a military organization and from time to time there were threats courts-martial and "dishonorable discharges." Appearances to the contrary notwithstanding, the Flying Tigers were civilian contractors.

III. Legal Analysis

The concern over loss of citizenship held by some of the Flying Tigers proved groundless. Under the Nationality Act of 1940 the grounds for loss of citizenship included joining a foreign military force (1) if the foreign nation was at war with the United States or (2) if the individual became a commissioned or non-commissioned officer in the foreign army. By the time the Flying Tigers got into action the U.S. was in a declared war with Japan, and China was an ally. As noted above, none of the Flying Tigers actually became a member of a foreign army. Years later the Supreme Court would hold under a later version of the Nationality Act that in addition to running afoul of specific provisions of the Act citizenship was not lost unless the individual intended by performing the proscribed act to abandon his citizenship. Under the Laws of War lawful combatants are privileged to engage in combat. Their acts, conducted in accordance with those laws, are not crimes in either their own country or that of an adversary. A lawful combatant who is captured is entitled to become prisoner of war. He may not be tried by the capturing force and is entitled to certain humane standards of treatment. On the contrary those who "take up arms" unlawfully and commit acts of violence are subject to criminal prosecution and, if captured, are not entitled to prisoner of war status.

Lawful combatants include members of national armies. "The laws, rights and duties of war apply_also to militia and volunteer corps, fulfilling" certain conditions. It appears fairly clear that the Flying Tigers were neither members of the Chinese army (air force) nor the American armed forces. If they were eligible to be considered lawful combatants they would have to meet the criteria applicable to "volunteer corps." There are four applicable conditions. Arguably, the Flying Tigers met three of these: have a fixed and distinctive emblem; carry arms openly; and, conduct operations in accordance with the laws of war.

The fourth criterion (actually the first listed) is "To be commanded by a person responsible for his subordinates." Although, Chennault was ostensibly "commander" of the AVG, it is not clear from a legal perspective that he had any direct relationship to AVG personnel. They were employees of CAMCO. Chennault was an agent or employee of the Chinese government. CAMCO was an agent of the Chinese government but Chennault had no direct control over CAMCO and no employer-employee relationship with AVG personnel. He may have been the "real power" but he seems to have had no legal employment relationship much less a command relationship.

Even if Chennault was considered to have a direct relationship with the personnel of the Flying Tigers, it was one based on contract. The official view of the International Committee of the Red Cross (the agency that administers the Geneva Conventions) is that contractors are not "responsible" for their employees in the sense the Conventions require, nor is any contractor a party to the Conventions. That Chennault was not concerned with such niceties is reinforced by the fact that after being re-called to active duty in the U.S.A.A.F. he appointed a civilian contractor (Curtis Smith) as the first "commander" of the U.S. 23rd Fighter Group.

Civilian contractors that accompany a military force may also be entitled to prisoner of war status if captured, provided; they are non-combatants and comply with certain procedural requirements. It seems doubtful that the applicable procedural requirements were followed by the A.V.G. Chennault obviously considered the organization and its members combatants. That was their purpose in coming to China.

The conclusion seems inescapable that the members of the Flying Tigers were civilian contractor employees. Though "volunteers" they were not responsible to any commander in the Chinese Air Force. As such, when they engaged in combatant activities they did so contrary to international law. They were not entitled to prisoner of war status if captured and any acts of death or destruction committed by them could properly be considered criminal acts.

As established above, Chennault was a retired regular officer. He was also a well-paid advisor to Chaing Kai-Shek, the ruler of China and head of its government. Thus, Chennault received money from, and, held a position in the Chinese government. Many years later, the Judge Advocate General of the U.S. Air Force was to rule that a retired regular officer who received retired pay, held an "office" in the United States Government. In the same opinion it was ruled that accepting a position as a pilot for a Saudi Prince would constitute employment by a foreign state. Based on those findings, it was concluded such employment ran afoul of the Constitutional prohibition that "... no person holding any office of trust or profit under [the United States], shall, without the consent of Congress, accept any present, emolument, office, or title, of any kind whatsoever, from any, ... foreign state". The term emolument was deemed broad enough to encompass pay for services as an employee (similar conclusions have been reached in other opinions). The facts of Chennault's case seem to fit closely.

IV. Conclusion

Lawyers from the Departments of State or War, with the mentality of those there today, ruling on Chennault's activities in China from 1937-1941, would have objected to his activities rather than supported them. Current lawyers from the Department of Defense (then separate departments of War and Navy), given the current track record, would never have allowed the recruitment of army or navy pilots for the AVG. The most effective fighting force in the Far East in the early days of the war against Japan would never have existed if current legalistic / bureaucratic views had then prevailed. Congress, then and now, may deserve some blame but primarily it is the current interpretation of law and legalistic application of law that serves as the basis for questioning geo-political practice and military operations, which when questioned, should be judged in terms of substantial (rather than technically narrow) compliance with applicable law and effectiveness. Given the conclusions of this obviously limited study, had current media, political and legal standards applied to World War Two, the conflict might have been lost, or, at a minimum, the legitimacy of the Allied cause cast into doubt.