(dissenting):
I dissent.
On June 25, 1950, Communist aggressors began the hostilities in Korea. The United States became engaged in resisting aggression in response to the call of the United Nations Security Council. 96 Cong Record 9228; Department of State Publication No. 4287, “The United Nations and Collective Action Against Aggression.” So generous and extensive was our response that we were soon providing the major part of the military and economic support to the Republic of Korea. However, the Korean hostilities did not precipitate the United States into a full-scale state of war. On June 80, 1950, on the floor of the United States Senate, Mississippi Senator Stennis declared that this joinder of United Nation forces provided “a new method of meeting world emergencies and a new method of preventing war.” 96 Cong Record 9540. See also: Collier’s Yearbook, 1951, page 674.
Unquestionably hostilities in Korea produced the consequences of war in that area. That situation was expressly recognized by this Court in United States v. Bancroft, 3 USCMA 3, 11 CMR 3. But, the entire genius of our Government’s policy in the Korean crisis was to confine the hostilities and its consequences to the combat zone. This was made clear by Congressional and Presidential action, following the engagement of American forces as part of the United Nations command.
On June 28, 1950, one day after President Truman ordered military support for South Korea, as well as the acceleration of the program of military assistance for the support of Indochina and the Philippines, the late Senator Taft declared in the Senate that this commitment meant de facto war, but he made it clear that he did not regard the war as extending to the continental United States. He considered the President’s action as only a new executive development of the foreign policy of the United States which brought danger of war, but not war itself. 96 Cong Record 9322. Six months later, Senator Taft emphasized his understanding that, in spite of the Korean conflict, the continental United States was not in a state of war. In a speech on foreign policy in the Senate on January 5, 1951, he said (97 Cong Record 56) :
“Since there is a greater possibility, however, of a destructive war against our liberty than we have ever faced in the past, at least since the Revolutionary War, there is no doubt that we should go just as far toward preparing for war as we can go in time of peace without weakening ourselves in the long run and destroying forever the very liberty which war is designed to protect.”
In a later discussion of the use of ground troops in Europe, he said (Ibid, page 148):
“However, in the case at hand, it seems to me that we have a question of foreign policy rather than of arms. We have a question of whether or not we are going to commit the United States. Certainly there is a tremendous difference between sending an army of 30 divisions to Europe and occupying Germany with two divisions as a force of occupation. Those are basic questions, which it seems to me are well within the authority of Congress to determine in time of peace.
“Is it not true also that for many years the law provided that the President could send no troops outside of continental United States in time of peace?”
*229On January 15, 1951, Senator Douglas of Illinois, referring to the history of Communist threats to world peace, made it evident that he did not regard Korea as indicating a state of war in the continental United States. Thus, he said (Ibid, page 242):
“We Have Every Reason To Fear Russian Aggression.
“But we are now in January 1951. A totalitarian power which most of us have long believed was committed by its very nature to a garrison state threatening expansion, has now committed its largest satellite, China, to the risk of a general war. Acting through the United Nations we prevented Russian aggression in Iran, in the Dardanelles and in Greece. Acting with our British and French allies, we prevented the Russian seizure of Berlin.
“Wherever we showed strength to resist Communist aggression the Russians backed down.
“Last June 24, however, the forces of world communism, solidly backed by Russia, committed armed military aggression across the whole of a national frontier. Korea, Mr. President, is all too grim and bloody a fact, as is known to many American families. If war comes, it will have been instigated by Russia, not by us. And we should not by an injudicious use of words, such as the Senator from Ohio’s [Mr. Taft’s] statement implying that we would be the main instigators of a war if we sent additional troops to Western Europe, give the Russians a propaganda weapon, which, though untrue, can be and is being used against us.”
Similar expressions of Congressional opinion appear in other discussions on the floor of both houses of Congress. See 97 Cong Record 163, 188-189. See also Congressional Committee Reports on Universal Military Training and Service Act — Senate Report No. 117 on S 1, House Report No. 271 on S 1, and Conference Report No. 535 on SI, 82d Congress, 1st Session.
Congressional understanding of the delimited nature of the hostilities also appears in its action on specific legislation. Congress was considering an extension of the Selective Service Act of 1948, when the Communist aggression began in Korea. It is significant that the bill was extended for only one year. 64 Stat 318. Equally significant is the limitation written into the Universal Military Training and Service Act on June 19, 1951, which expressly prohibits extension of certain enlistments without consent, in the absence of a war or national emergency declared by Congress. 65 Stat 75, 88. Similar in nature to these actions is the grant of the free mail privilege. During general wartime conditions, the privilege was extended to military personnel within, as well as without, the continental limits of the United States, 56 Stat 176, 181, 59 Stat 538, 542. However, when Congress reinstated the privilege on July 12, 1950, it was expressly limited to the forces in Korea and such areas as may be designated by the President as combat zones. 64 Stat 336, 65 Stat 90; 50 USC App § 892. Also in the same category is the grant, in September 1950, of certain income tax advantages in the form of exclusions of pay from gross income. In time of general conflict this exclusion was authorized for all personnel on active duty, wherever the place of their service. 61 Stat 917, 918. In the present situation the grant is only to those serving in a combat zone, as designated by the President. 65 Stat 920, 26 USC §226(13).
Other contemporaneous acts of Congress indicate that it did not consider the hostilities in Korea as a state of war in the United States itself. Only one more act of particular significance needs mention, and that is the Defense Production Act (Public Law 774, 81st Congress, 2d Session). The policy statement of the Act, reads as follows:
“DECLARATION OF POLICY. See. 2. It is the policy of the United States to oppose acts of aggression and to promote peace by insuring respect for world law and the peaceful settlement of differences among nations. To that end this Government is pledged to support collective action through the United Nations and *230through regional arrangements for mutual defense in conformity with the Charter of the United Nations. The United States is determined to develop and maintain whatever military and economic strength is found to be necessary to carry out this purpose. Under present circumstances, this task requires diversion of certain materials and facilities from civilian use to military and related purposes. It requires expansion of productive facilities beyond the levels needed to meet the civilian demand. In order that this diversion and expansion may proceed at once, and that the national economy may be maintained with the maximum effectiveness and the least hardship, normal civilian production and purchases must be curtailed and redirected.
“It is the objective of this Act to provide the President with authority to accomplish these adjustments in the operation of the economy. It is the intention of the Congress that the President shall use the powers conferred by this Act to promote the national defense, by meeting, promptly and effectively, the requirements of military programs in support of our national security and foreign policy objectives, and by preventing undue strains and dislocations upon wages, prices, and production or distribution of materials for civilian use, within the framework, as far as practicable, of the American system of competitive enterprise.”
This policy statement makes it clear that Congress regarded the Korean conflict as emphasizing the importance of military and economic preparedness, but there is in it not the slightest intimation of a state of war within the territorial limits of this country.
The executive branch of the Government has taken a similar view of hostilities in Korea. In his Proclamation of a National Emergency on December 19, 1950, President Truman referred to the events in Korea and elsewhere as constituting “a grave threat to the peace of the world and imperil [ing] the efforts of this country and those of the United Nations to prevent aggression and armed conflict.” He did not proclaim that the continental United States was in a state of war; rather he declared that “the increasing menace of the forces of communist aggression requires that the national defense of the United States be strengthened as speedily as possible.” Proel No. 2914, 15 Fed Reg 9029. Other proclamations express a like understanding of the limited scope of the war in Korea. See Proel No. 2918, 16 Fed Reg 2383; Proel No. 2927, 16 Fed Reg 4367; Prod No. 2928, 16 Fed Reg 4607.
Of special significance in the solution of the problem in this ease is the President’s suspension of the Table of Maximum Punishments. When our country was at war, the Table was suspended for every part of the world in which American forces were located. Executive Order 9048, February 3, 1942; Executive Order 9267, November 9, 1942. To meet the purposes of American participation in the United Nations resistance of aggression in Korea, it was suspended only in the Far East command. Executive Order No. 10149, August 8, 1950,15 Fed Reg 5149.
The majority would extend the Korean conflict to the continental United States because “most of the attributes of a declared war” are present. Most, if not all, of these attributes, including Selective Service and the movement of men to the Far East, were in existence before the communist aggression. They constituted an integral part of the American program for national defense and the preservation of world peace. After the aggression in Korea, it was evident that the degree of preparedness was insufficient. Much more was required. Suitable measures were taken, not because of the hostilities in Korea as such, but because those hostilities highlighted the danger of communist aggression against our homeland. Even in the area of civilian defense there was no indication that the Korean hostilities had created a state of war in the United States. On December 20, 1950, Representative Durham of North Carolina initiated the discussion in the House of Representatives on the Federal civilian defense program. He made it clear that civilian defense was part *231of the long-range defense effort, and was not prompted by the hostilities in Korea. 96 Cong Record 16826-28. As a matter of fact, Representative Javits of New York insisted that the record show emphatically that the civilian defense emergency which could be declared by the President under the Act was not the same as the national emergency that the President had declared the previous day under the Defense Production Act. Ibid, page 16831.
The majority rely upon the holdings of some courts, that the provisions of an insurance policy excluding certain death benefits in the event that the insured dies in the military service “in time of war,” applies to a situation such as that resulting from the hostilities in Korea. Other courts have, with equal vigor, construed the same provisions as applying only to a war officially declared by Congress. Harding v. Pennsylvania Mut. Life Ins. Co. 373 Pa 270, 95 A2d 221, cert den 346 US 812, 98 L ed —, 74 S Ct 21, and Beley v. Pennsylvania Mut. Life Ins. Co. 373 Pa 231, 95 A2d 202, cert den 346 US 820, 98 L ed —, 74 S Ct 34; McClintic v. Metropolitan Life Ins. Co. 68 Am Life Convention Legal Bull 72 (Sup Ct, Marion Co, Ind); Dean v. Atlantic Life Ins. Co. Ibid 61 (Cir Ct, Wise Co, Va); Hawkins v. Metropolitan Mutual Assur. Co. 69 Am Life Convention Legal Bull 52 (Cir Ct, Cook Co, Ill). Moreover, with but one exception, the cases cited by the majority were concerned with an insured who died in Korea. To that extent they are not inconsistent with the well-settled principle that the consequences of war may be present in an area of actual hostilities. Bas v. Tingy, 4 US 37, 1 L ed 731. United States v. Bancroft, supra; Hamilton v. McClaughry, 136 Fed 445 (CC Kan). In any event, these insurance clause cases are not germane to the problem here. The meaning of a public law is to be found in what Congress itself has done and said. From my review of Congressional action, I am convinced that Congress did not conclude that Korea plunged the entire country into a state of war. No doubt, “the conflict . . . received the sanction of Congress” but every action on its part indicates that Congress regarded Korea as limited in place, in purpose, and in its consequences.
Much more applicable to our problem than the insurance cases are the Federal court decisions construing 18 USC § 3287, which provides that the running of the statute of limitations on fraud offenses shall be suspended “when the United States is at war.” In United States v. Taylor, 4 USCMA 232, 15 CMR 232, this Court noted that section 3287 was the model for subdivision (/) of Article 43. The language of subdivision (/) is almost the same as that in subdivision (a),. the particular section of Article 43 under consideration in this case.
In United States v. Smith, 342 US 225, one of the offenses was committed before hostilities in Korea. However, the statute of limitations against the offense had not yet run when the communist aggression took place in that country. Notwithstanding the Korean situation, the United States Supreme Court held that section 3287 did not apply, and that the regular statute of limitations was controlling. Although the effect of Korea was apparently not relied upon by counsel, it is significant that the case was argued before the Supreme Court in December 1951, almost a year and a half after the aggression in Korea. Certainly, if the Supreme Court considered the Korean situation as tantamount to a state of war in the United States, it could have taken judicial notice of the hostilities and held that the United States was at war. But, it did not do so. Since the decision in the Smith case, United States district courts have repeatedly dismissed indictments filed after the normal periods of limitations, in spite of the fact that the regular periods had not expired at the time the United States sent its forces into Korea. United States v. Witherspoon, 110 F Supp 364 (DC Tenn); United States v. Minkow, 108 F Supp 509 (DC Ill); United States v. Peoples Savings Bank in Providence, 102 F Supp 439 (DC RI).
In part, at least, the majority bases its argument upon the difficulty of apprehension of deserters in a period of *232war. As I understand this argument it actually gives support to the reasonableness of extending the statute of limitations in time of war; it does not supply any basis for the conclusion that the present emergency is really a state of war. As far back as April 1952, this Court in United States v. Ferretti, 1 USCMA 323, 3 CMR 57, did not regard the situation in the United States as so disorganized and distracted as it is now made out to be. Speaking on the subject of an apprehension, made at a time shortly after the offense in this case was committed, we said:
. . Peterson remained at his home of record during the entire period of the offense, and thus could have been apprehended with ease and returned to military control.”
No doubt, if the accused conceals himself, or remains away from his home of record, he may never be apprehended. However, that does not mean that such concealment can successfully bar prosecution because of the running of the statute of limitations. Under the Code, the period of limitation ends when sworn charges are received by an officer exercising summary court-martial jurisdiction over an accused. Article 43, Uniform Code of Military Justice, 50 USC § 618; Manual for Courts-Martial, United States, 1951, paragraph 68c, page 100; United States v. Nichols, 2 USCMA 27, 6 CMR 27. Knowledge of the specific whereabouts of the accused is unimportant. It is only necessary to know that he is absent without authority. Determination of that status may . sometimes be delayed in places where .changes of personnel are frequent, but reason indicates that, under present conditions, it should not take three years to discover an absence.
Fear has been expressed that an unconscionable few, who, by desertion or unauthorized absence, have avoided the hardships of service in time of emergency, may escape punishment for their offense. There may be some cause for such fear, but we cannot overcome it by judicial legislation. Congress and the President have unmistakenly indicated that the war in Korea did not create a “state of war” in the continental limits of the United States. This Court cannot go beyond the limits delineated by Congress and the President. If the danger is great, Congress can correct the situation by providing for an extension of the statute of limitations during the present period of national emergency. Falter v. United States, 23 F2d 420 (CA2d Cir 1928), cert den 277 US 590, 72 L ed 1003, 48 S Ct 528.
I would affirm the decision of the board of review and dismiss the charges.