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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.

continued in part 2