Student Lawyers & Viet Nam

"Viet Nam is the most significant social, political and legal issue of the day," said Harvard Law Professor Alan Dershowitz last week." And a law school should be concerned with the issues of the day." Dershowitz had just finished giving the first class in a brand-new, ten-week Harvard course entitled "The Role of the Law and the Lawyer in the Viet Nam Conflict." It has no exam or grades, offers no credit, and involves a good deal of reading over and above the students' already heavy regular work load. But it has a record enrollment of more than 400--one-quarter of the student body--and is one of the most popular courses in the 150-year history of the school.

The course will cover such questions as the international-law aspects of the war, the division of war-making responsibility between the President and Congress, free speech and dissent, the draft and the rights of an inductee, and the status of a conscientious objector to a specific war.

Thesis Turned Boole. Other law schools have also encouraged students to dig into the issues raised by Viet Nam. Last week a student-faculty committee at U.C.L.A. Law School decided to try to start a Viet Nam-and-the-law course in the fall. If approved by the faculty, it will be given for credit. New York University Law School started a seminar on the subject for third-year men this semester. Students have also been probing Viet Nam on their own. The most extensive effort so far is a new book, Law and Viet Nam, by two 1967 Yale Law graduates, Roger Hull and John Novogrod.

The book was originally meant as a law-school thesis, and the pair spent both their second and third years working on it. It earned a top grade--and a contract from Oceana Publications, a specialist in international-law texts. The authors started out as neither hawks nor doves. They merely sought to discover the pertinent law on a few of the same problems that the Harvards will be investigating. The results will surprise many people, including lawyers, who sincerely consider the war not only immoral but illegal as well.

May the U.S. Help? To begin with, the authors tackle the often-heard argument that the war is wholly civil because North and South Viet Nam are actually one state. The Lawyers' Committee on American Policy Toward Viet Nam, among other antiwar groups, argues that the two Viet Nams were artificially separated by the 1954 Geneva accords, and that the separation amounts to nothing but a legal fiction. Hull and Novogrod point out that in 1946, "the French recognized Ho Chi Minh's 'Republic of Viet Nam' (covering Viet Nam north of the 16th parallel) as a free state." As for South Viet Nam, it had been accepted by a majority of the U.N. General Assembly as a "peace-loving state" and would have been admitted to membership in 1952 and again in 1957 except for Russia's Security Council vetoes.

The authors then document the North's aid to and control of the Viet Cong and conclude that it is a war of aggression to which the U.S. may respond. But even if it were only an internal conflict within South Viet Nam, Hull and Novogrod report that accepted international law says that any country, if asked, may aid the existing government; no country may aid the insurgent. "Admittedly," say the authors, "existing law favors the established government. Admittedly too, at a time when many areas of the world are attempting to break the shackles of colonialism, this result may seem inequitable. When viewed in terms of world order, however, it does not seem overly harsh, especially since outside states need not come to the assistance of oppressive regimes."

Quiet Objection. How about U.S. law? Hull and Novogrod submit that although the Constitution gives Congress the sole right to declare war, the key word is "declare." The drafters rejected a proposed constitutional phrase giving Congress the right to "make" war. "Declare" was substituted, and, say the authors, "clearly the framers intended to give the President the power to meet a sudden attack without a congressional declaration of war." In addition, Congress has ratified the SEATO Treaty, which provides for aid to member nations threatened by external forces, and it has passed the Tonkin Resolution, which even Senator William Fulbright conceded at the time gave the President the authority to use such force as could lead to war. Many U.S. Presidents have had much less support for their actions, notably Lincoln, who blockaded Southern ports without congressional consent.

Hull, now a Wall Street lawyer, and Novogrod, soon to receive a Navy commission, are still neither full-feathered hawks nor doves, but their book firmly concludes that U.S. assistance to South Viet Nam is legal.

Certainly not all law students or professors agree. Indeed, a notably quiet antiwar petition is currently being circulated at a number of law schools, urging lawyers "to work for a change in every legitimate way they can." Among the signers: Alan Dershowitz, founder of Harvard's Viet Nam course.

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