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BERK v. LAIRD

September 16, 1970

Malcolm A. BERK, Plaintiff,
v.
Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley S. Resor, individually, and as Secretary of the Army of the United States, and Col. T.F. Spencer, individually, and as Chief of Staff, United States Army Engineers Center, Fort Belvoir, Defendants


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS

JUDD, District Judge.

 An action for an injunction against sending an enlisted Army man to Vietnam challenges the constitutional basis for the presence of United States armed forces in South Vietnam. The case is before the court on defendants' motion to dismiss on the three grounds of lack of jurisdiction, failure to state a valid claim, and summary judgment for lack of genuine issues of material fact.

 General Outline

 The following controlling conclusions seem appropriate on the basis of the pleadings, affidavits, memoranda and public documents which the court has studied:

 1. From the early days of our republic, there has been a recognized distinction between a "perfect war" or total war, initiated by a formal declaration of war, and an "imperfect war" or partial war, which involves military action authorized by Congress without a formal declaration of war.

 2. There is no doubt that Congress has authorized the President to send members of the armed forces to South Vietnam to engage in hostilities.

 3. The question whether Congress should declare total war or rely on some other mode of authorizing military action is a political question, on which a court should not overrule Congress' determination.

 4. The controversies between the parties raise only questions of law, and no disputes of any material fact.

 After setting forth the posture of the case, and the facts of record, the court will elaborate upon the foregoing propositions.

 The Posture of the Case

 At an earlier stage, this court denied a motion for a preliminary injunction, on the ground, among others, that prior court decisions indicated that the power of the President as Commander-in-Chief to send the armed forces abroad was a political question, which courts should not decide.

 An appeal was taken and decided by the Court of Appeals on June 19, 1970. The Court of Appeals affirmed the denial of a preliminary injunction, but held that the question of the President's power to commit the armed forces to action involved a justiciable question, and remanded the case for further proceedings.

 The Court of Appeals recognized that even a justiciable claim may not be decided if it involves a political question without "judicially discoverable and manageable standards for resolving it." The quotation was taken from Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 710, 7 L. Ed. 2d 663 (1962). After referring to Congress' actions concerning the Vietnam hostilities, "in part expressly through the Gulf of Tonkin Resolution and impliedly through appropriations and other acts in support of the project over a period of years," the Court of Appeals left it open for plaintiff's counsel "to suggest a set of manageable standards and escape the likelihood that his particular claim about this war at this time is a political question." 429 F.2d 302, p. 305.

 The Court of Appeals extended for seven days a temporary stay which Mr. Justice White of the Supreme Court had previously granted. On June 26, 1970, the Supreme Court denied any further stay of plaintiff's deployment. 399 U.S. 918, 90 S. Ct. 2224, 26 L. Ed. 2d 785.

 This court treats the Court of Appeals' opinion as holding that jurisdiction exists to consider plaintiff's claim, thus eliminating the first ground of defendants' motion.

 Before any further proceedings were had in this case, another attack on the transfer of a soldier to Vietnam came before Judge Dooling of this court. Orlando v. Laird, 317 F. Supp. 1013. He denied a preliminary injunction against deployment to Vietnam, after considering extensive documentary material and hearing arguments of counsel. While his conclusion is persuasive to another judge of the same court, it does not eliminate the necessity of giving full consideration to this case.

 Plaintiff's Proposed "Manageable Standards"

 Plaintiff suggests three different categories of military action, requiring different measures of legislative-executive cooperation. The first category includes various types of emergency action, such as repelling an attack on the United States or protecting American citizens from attack, which the President may take without any action by Congress. In the second category are placed other acts of war against organized states, and aid in protecting any other nation from attack; plaintiff says these acts may be authorized or ratified by any explicit Congressional action, but not by appropriations acts, unless such acts "explicitly and by their own terms authorize, sanction and/or direct military action."

 The third category is described as "hostilities of the highest magnitude," as measured by numbers of men involved, amounts of equipment, and use of the most powerful weapons. Such actions, plaintiff says, cannot be initiated without prior explicit Congressional authority. Even if the military action began in the first or second category, plaintiff says that the action may not be escalated to the highest level without prior explicit action by Congress. Plaintiff says that the third category of military action can be authorized only by:

 
Prior explicit Congressional approval either through a declaration of general war or limited war or treaty, law or resolution explicitly authorizing the use of military force. * * *"

 Plaintiff asserts that neither the Gulf of Tonkin Resolution nor the appropriation acts and other legislative acts cited by the government constitute prior explicit authorization for the use of military force.

 In number of men involved (accepting for this purpose the 3,000,000 figure used by plaintiff), numbers of killed (42,000) and wounded (280,000), amounts of equipment (half our entire air force), and amounts of money expended (over $100 billion), the Vietnam conflict ranks as a major war. There may be a question whether it involves "the highest magnitude" of military action, since it has not been extended to a land invasion of North Vietnam, or a blockade of the North Vietnam coast, among other potential forms of escalation. Nevertheless, the case will be considered on the basis of its belonging in the third category listed by plaintiff, without thereby accepting his requirement of prior explicit Congressional authority.

 The Facts of this Case

 Plaintiff enlisted in the United States Army on June 27, 1969, for a three-year term which will expire on June 27, 1972. He is now twenty years old, and is a private first class. Prior to his enlistment, he lived in Queens County, New York. He was at home on leave when he filed his complaint.

 He was ordered by defendant Spencer to report to Fort Dix on June 7, 1970, for shipment to South Vietnam. He began this action on June 3, 1970. After the Supreme Court's denial of a stay of his deployment, he was in fact sent to Vietnam and is still there.

 Plaintiff's Proposed Expert Testimony

 Affidavits or statements of five experts have been submitted in opposition to defendants' motion. No reply affidavits having been filed, the court must assume that the facts stated in the affidavits for plaintiff are true, although the inferences and conclusions drawn from those facts need not be accepted.

 Richard E. Fenno, Jr., Professor of Political Science at the University of Rochester, asserts that the fair meaning of appropriations bills is that they do not encompass major declarations of policy. He cites rules of House and Senate which are designed to prevent declarations of policy being included in appropriations bills, and states that "Many motives including considerations of common humanity and procedural propriety underlie a Congressman's determination to vote for a particular military appropriations bill." Therefore, he says, a bill should explicitly state that it empowers the executive to commit troops abroad, before it can overcome the strong presumption against such a determination of policy.

 Fred L. Israel, Associate Professor of History at the College of the City of New York, offers to supply testimony on the manageable standards appropriate to determine what joint executivelegislative action is necessary to authorize various kinds of activity. He would also testify about the pressures of domestic policy and world affairs that must be considered in determining such "manageable standards."

 George McT. Kahin, Professor of Government at Cornell University, provides a detailed history of foreign involvements in Vietnam since the beginning of the French presence in the nineteenth century. France did not "pacify" all of Vietnam until 1917. Japan occupied Indo-China during World War II, and the United States supported the Vietnamese Independence League, or Vietminh, in order to oppose the Japanese. After the Japanese surrender in 1945, Ho Chi Minh on September 2, 1945 proclaimed Vietnam's independence. The French in 1946 recognized the Democratic Republic of Vietnam as a free state within the Indo-Chinese Federation and the French Union. However, the French Viceroy in Indo-China soon set up a separate government in Cochin China, part of South Vietnam, and friction with the Vietminh developed. The French fought from 1946 to 1954 in an unsuccessful effort to defeat the Vietminh. In 1948, the French appointed Bao Dai to head a new government; he had been Emperor of Annam, and had been made head of an earlier Vietnamese government by the Japanese. The United States recognized Bao Dai's government in 1950, and began to supply military and economic assistance to the French, reaching over $1 billion by 1954. However, President Eisenhower refused to order military intervention because he could not get the requisite backing from Congress.

 In May, 1954, there were 685 U.S. ground forces in Vietnam as "advisers." After the surrender of the French at Dienbienphu in May of 1954, a conference was held in Geneva concerning the treatment of Vietnam. The participating governments were France, Laos, Cambodia, the People's Republic of China, the United Kingdom, the Soviet Union, the Bao Dai state (designated as "the State of Viet Nam"), and the Democratic Republic of Viet Nam. Anthony Eden and Vyacheslav Molotov were co-chairmen of the conference. The United States was not a member of the conference, but was represented by Walter Bedell Smith.

 The first "Geneva Agreement" was one "on the Cessation of Hostilities in Viet Nam," between the French Union Forces in Indo-China and the People's Army of Viet Nam. It provided for a "provisional military demarcation line" and a demilitarized zone at about the 17th parallel (Art. 1), for a cease-fire beginning on July 27, 1954 (Art. 11), and for the withdrawal of each party's forces from the areas designated in the agreement, "Pending the general elections which will bring about the unification of Viet Nam." (Art. 14). Provision was made for a Joint Commission of the two parties (Arts. 30, 31), and for an International Commission comprising India, Canada and Poland, to supervise the execution of the agreements. (Arts. 34-36).

 The second relevant document to come out of the Geneva Conference was a "Final Declaration," adopted orally by all the parties named above, except the Bao Dai state, which expressed reservations, and the United States. This Declaration endorsed the armistice agreement, and took note of various clauses in the agreement. The Geneva Conference, in the Declaration, recited that the International Commission would supervise general elections to be held in July, 1956, with consultations on the subject to begin in July, 1955.

 Ambassador Smith stated that the United States was not prepared to join in the Declaration, but that it took note of the Geneva Agreements, and stated, "that it will refrain from the threat or the use of force to disturb them," and that:

 
"We share the hope that the agreement will permit Cambodia, Laos and Viet Nam to play their part in full independence and sovereignty, in the peaceful community of nations, and will enable the peoples of that area to determine their own future." Command Paper 9239, pp. 446-47.

 The documents supplied by Professor Kahin are British copies. Command Paper 9329, 1959, pp. 422-450.

 The general elections for all Vietnam were not held. Professor Kahin asserts that the United States violated the Geneva Agreements by supporting a separate state in South Vietnam, and backing a new government headed by Ngo Dinh Diem, who stated (incorrectly) that he was not bound by the Geneva Agreement, and refused to discuss the question of elections. Repressive actions by the Diem government led to the growth of the National Liberation Force, or Vietcong, who had no help from Hanoi until late in 1960, according to Professor Kahin. Because the Diem government was in danger of collapse, President Kennedy in 1961 increased the economic and military aid, bringing the number of military advisers to 18,000 during his time in office. Diem was murdered in November, 1963, a few weeks before President Kennedy's assassination.

 Professor Kahin asserts that President Johnson in January, 1964 encouraged the new Saigon government of General Duong Van Minh and later of General Nguyen Khanh to continue to seek victory against the Vietcong, in spite of suggestions from United Nations Secretary General U Thant that Ho Chi Minh was willing to talk about a settlement of the conflict.

 On August 2, 1964, North Vietnamese torpedo boats attacked the U.S. destroyer "Maddox" while it was on patrol in the Gulf of Tonkin. The United States version was that the attack was unprovoked, but Hanoi asserted that it was in retaliation for bombardment of nearby North Vietnamese islands. A second attack on U.S. destroyers on August 4 was reported by United States sources, but denied by North Vietnam. President Johnson then told Congressional leaders that he was going to ask them to pass a resolution in response to this crisis, and he followed this up with a television broadcast and a message to Congress urging a clear statement to "hostile nations" that the United States would continue to protect its national interests.

 At this time, over 26,000 men had infiltrated into South Vietnam from the North, and the average rate of infiltration was about 1,000 per month, according to the exhibits attached to the affidavit. Professor Kahin states that the Vietcong controlled 42 per cent of Vietnam's villages, but that this success had been obtained "without the help of military units from Hanoi." (Emphasis added).

 Renewed efforts at peace negotiations by U.S. Secretary General U Thant were made after the November, 1964 Presidential election, but were rebuffed by the United States after Secretary of Defense McNamara argued that negotiations would have a demoralizing effect on Saigon.

 Escalation of United States military activity was slight after the Gulf of Tonkin incident, but more rapid after a Vietcong attack in early 1965 on American barracks in Pleiku, where 8 were killed and 126 wounded. Bombing raids were begun against logistical centers in the North in February and March, 1965. Infiltration from the North was about 4,500 per month during 1965. By December, 1965, there was air bombardment of the "Ho Chi Minh trail" in Laos from airfields in Thailand, and pursuit of retreating enemy troops into Cambodia. Non-lethal gas was used in 1966 to drive Vietcong from tunnels. By August, 1966, the weekly tonnage of bombs exceeded the amount dropped on Germany at the peak of World War II. A Congressional report in 1966 indicated that there were two civilian casualties for every Vietcong casualty. By mid-1966, United States weekly casualty totals frequently exceeded those of the South Vietnamese.

 United States troop strength in Vietnam was only 23,000 in early 1965, but jumped to over 375,000 by the end of 1966, with an additional 29,000 from Australia, New Zealand, and South Korea.

 The foregoing capsulized history is pertinent background for consideration of the Congressional actions described later in the opinion. The court has made no objective determination of facts, but used the version given by plaintiff's expert.

 Professor Marcus Raskin, co-director of the Institute for Policy Studies in Washington, D.C., also gave a history of the Indo-China War from 1946 to 1967, with figures showing the escalation of United States forces during the years 1965, 1966 and 1967. He related that President Truman sent a military mission there in 1950 to work with the French force, and that $2.2 billion of military and economic aid was provided between June, 1950 and May, 1954. President Eisenhower believed in 1954 that he would need explicit Congressional approval before committing troops or naval or air forces to Vietnam, although some of his administration favored our assuming France's role. The Executive nevertheless justified sending additional military aid on the theory that the North Vietnamese had violated the Geneva Agreement. The total increased to 773 by the end of President Eisenhower's administration, and to 16,500 by the end of President Kennedy's time in office. Figures for later years are set forth. He asserts that bombing attacks by U.S. forces in 1965 were not really retaliation for Vietcong attacks, but part of a pre-determined military policy.

 At the present time, over half of the nation's entire airpower is allocated to military activities in Southeast Asia. Professor Raskin describes extensive defoliation and crop destruction, forced transfer of entire villages, civilian hardship and deaths, torture of war prisoners, and the use of sophisticated aerial weapons.

 Don Wallace, Jr., Associate Professor of Law at Georgetown University Law Center, offered to testify about how appropriations bills are handled and the inferences to be drawn from them. He emphasizes that rules against including substantive legislation in appropriations bills are necessary in order to prevent the Appropriations Committees from encroaching on the powers of the substantive committees. He quotes statements by Congressmen during the debate on appropriations for Vietnam, that they were voting for the bills because they believed policy issues should not be decided through appropriations bills, although they were opposed to escalation of the war in Vietnam. He points out that, of eighteen laws for military expenditures since 1964 (eight authorization bills and ten appropriations bills), five contained no reference to Vietnam, and that the legislative history leaves substantial question as to whether any of them constitute authorization or ratification of the Executive decision to carry on hostilities in Vietnam. He quotes many members of Congress as stating that they did not endorse the United States policies in Vietnam, but were voting to support the forces who were there.

 The Power to Declare War

 Congress' power to declare war is set forth in Article I, Section 8 of the United States Constitution. ...


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