ACCOUNTING FOR ABSENT BODIES: THE POLITICS AND JURISPRUDENCE OF THE MISSING PERSONS ACT

• Pages: 75-95
• DOI: https://doi.org/10.1016/S1059-4337(02)28003-5
• Date: 09 April 2003
• Published date: 09 April 2003
• Author: Thomas M Hawley

ACCOUNTING FOR ABSENT BODIES:

THE POLITICS AND JURISPRUDENCE

OF THE MISSING PERSONS ACT

Thomas M. Hawley

ABSTRACT

This paper explores the political and legal issues contained in the law and

jurisprudence surrounding missing American service personnel. It argues

that the Missing Service PersonnelAct of 1995 is an effect of the legacy of the

Vietnam War rather than a response to a particular legal problem. The essay

further contends that we should be suspicious of the effort to transform the

balance sheet of war into a justiciable legal question, primarily because the

requirement to produce a body fails to disarm the representational economy

inwhichtheabsentbodyconstitutesacontinuationofVietnamWarhostilities.

INTRODUCTION

Since the end of direct American military involvement in Vietnam in 1973,

the fate of American service personnel unaccounted-for in Southeast Asia has

been a source of much lingering concern in the United States. The list of those

unaccounted-for, which included 2,583 names at war’s end, now stands at 1,905

(DPMO website 2002).1Efforts to determine the fate of those on the list have

generated numerous Congressional inquiries, Presidential delegations, and even

civilian forays to “rescue” American prisoners of war thought still to be held

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 28, 75–95

Copyright © 2003 by Elsevier Science Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/PII: S1059433702280035 75

76 THOMAS M. HAWLEY

in Vietnam.2Currently, the accounting effort is officially conducted by the U.S.

military’s Joint Task Force-Full Accounting (JTF-FA), which, in conjunction

with the Army’s Central Identification Laboratory,Hawaii (CILHI), sends several

search teams per year to Vietnam, Laos, and Cambodia to excavate graves and

aircraft crash sites in an attempt to repatriate and identify the remains of soldiers

who were killed in action but whose bodies were not recovered at the time

of death (JTF-FA website 2002; CILHI website 2002). The issue of missing

Americans has also become an enduring feature of the American political and

cultural landscape, having generated numerous family organizations who agitate

on behalf of missing service personnel, inspired a large number of feature films

and novels, and led to the creation of the POW/MIA Flag which flies at sports

stadia, government installations, and veterans’ posts across the United States.3

Tounderstand the effort to account for American service personnel in Southeast

Asia, it is important to bear in mind that fewer Americans remain unaccounted-for

from the Vietnam War than any other. Roughly 78,000 Americans remain miss-

ing from World War II, along with another 8,100 from the Korean War. Further

complicating the issue is the definition of “unaccounted-for,”which refers strictly

to the absence of the body. The United States government does not possess ver-

ifiable evidence that any American service personnel were left behind after the

cessation of hostilities in 1973 or that any Americans remain held in Southeast

Asia against their will.4To account for a missing service member, therefore, in-

volves not so much a determination of fate, since all unaccounted-for personnel are

believed dead, but the repatriation and positive identification of human remains.

This circumstance in turn means that the effort to account for VietnamWar missing

must be viewed in light of the contentious legacy of the VietnamWar, particularly

the fracturing of the American body politic that occurred during the war and the en-

during sense of failure and defeat which has been a hallmark of American political

and cultural life ever since. The return of the absent body functions metonymically

in that it not only resolves questions as to the whereabouts of missing service per-

sonnel but also helps bring a sense of closure to a conflict that otherwise refuses

to go away. As one searcher remarked,“The war won’t really be over until they’re

all accounted for. We need to bring them all home” (Dillow, 1995, p. A5).

Significantly, these circumstances are not restricted to the accounting proce-

dures used for Vietnam War-era service personnel. Indeed, the fraught cultural

and political legacy of the Vietnam War and the attendant importance of the body

is reflected nowhere more conspicuously than in contemporary law and jurispru-

dence concerning missing soldiers. The shift this represents in American legal

thinking about the balance sheet of war is noteworthy, one that begins with the

Missing Persons Act (MPA).5Since its passage in 1942, the Missing Persons Act

has served as the primary instrument through which the status of missing soldiers