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HOLTZMAN v. SCHLESINGER

July 25, 1973

Elizabeth HOLTZMAN, Individually and in her capacity as a member of the United States House of Representatives, et al., Plaintiffs,
v.
James R. SCHLESINGER, Individually and as Secretary of Defense, et al., Defendants


Judd, District Judge.


The opinion of the court was delivered by: JUDD

MEMORANDUM AND ORDER

JUDD, District Judge.

 Plaintiffs seek a determination that the President of the United States and the military personnel under his direction and control may not engage in intensive combat operations in Cambodia and elsewhere in Indochina in the absence of Congressional authorization required under Article I, § 8, Clause 11 of the Constitution. The case is before the court on plaintiffs' motion for summary judgment for lack of genuine issues of material fact. Additionally, plaintiffs seek declaratory and/or injunctive relief.

 Plaintiffs have also moved to add as plaintiff another Air Force officer on active duty, Captain Donald Dawson, and to stay the defendants from ordering him to engage in bombing missions over Cambodia.

 Posture of the Case

 At an earlier stage this court denied defendants' motion to dismiss the complaint, and overruled the contentions that Congresswoman Holtzman lacked standing to challenge the military activities in question and that the controversy presented a nonjusticiable political question.

 Both sides were given an opportunity to submit any additional papers that would bear on the appropriateness of summary judgment.

 Facts

 Review of the facts may begin with 1970, since the earlier phases of hostilities in Indochina have been summarized in an earlier case.

 This court held in September 1970 in Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), aff'd sub nom., Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), that Congress had authorized hostilities in Vietnam to that date through a series of appropriation acts.

 Hostilities in Cambodia

 In response to Presidential pronouncements concerning the necessity of military action in Cambodia, there was a series of Congressional responses seeking in the main to limit such military action, and culminating in two laws enacted on July 1, 1973 which directed that no funds might be expended for Cambodian combat activities after August 15, 1973.

 On April 30, 1970, the President stated in an address to the nation that "North Vietnam has occupied military sanctuaries all along the Cambodian frontier with South Vietnam," that Cambodia had therefore called on the United States for assistance, and that attacks were therefore being launched "to clean out major enemy sanctuaries on the Cambodian-Vietnam border." The Situation in Southeast Asia, 6 Presidential Documents 596, 597, 598.

 On June 30, 1970, a report by the President on the Cambodian operation, released at San Clemente, California, stated that all American troops had withdrawn from Cambodia, but that the United States would continue to conduct air interdiction missions to prevent supplies and personnel being moved through Cambodia toward South Vietnam, and that "We do this to protect our forces in South Vietnam." The President also stated that one of the reasons for attacking the enemy's "sanctuaries" in Cambodia was that this would "enhance the prospects of a negotiated peace." The Cambodian Operation, 6 Presidential Documents 843, 850, 852.

 The so-called Fulbright proviso, limiting military support to Cambodia except to the extent necessary to insure the safe withdrawal of United States forces from Southeast Asia and the release of American prisoners of war, was adopted by the Congress during the summer of 1970 and inserted in the War Forces-Military Procurement Act of 1971 and became law with the President's approval on October 7, 1970. This proviso, which was repeated in every subsequent military appropriation and authorization act, reads as follows:

 
. . . nothing [herein] shall be construed as authorizing the use of any such funds to support Vietnamese or other free world forces in actions designed to provide military support and assistance to the Government of Cambodia or Laos: Provided further, That nothing contained in this section shall be construed to prohibit support of actions required to insure the safe and orderly withdrawal or disengagement of U.S. Forces from Southeast Asia, or to aid in the release of Americans held as prisoners of war.

 P.L. 91-441, 84 Stat. 905; P.L. 91-668, 84 Stat. 2020; P.L. 92-156, 85 Stat. 423; P.L. 92-204, 85 Stat. 716; P.L. 92-436, 86 Stat. 734; P.L. 92-570, 86 Stat. 1184.

 On the evening of the same day the Fulbright proviso became law, October 7, 1970, the President addressed the nation by radio and television and stated that the North Vietnamese were carrying on aggression in Laos and Cambodia as well as in Vietnam and that "The war in Indochina has been proved to be of one piece; it cannot be cured by treating only one of its areas of outbreak." The New Initiative for Peace in Southeast Asia, 6 Presidential Documents 1349, 1350.

 The Special Foreign Assistance Act of 1971 (P.L. 91-652, 84 Stat. 1942), approved January 1, 1971, provided:

 
Sec. 7. (a) In line with the expressed intention of the President of the United States, none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia.
 
(b) Military and economic assistance provided by the United States to Cambodia and authorized or appropriated pursuant to this or any other Act shall not be construed as a commitment by the United States to Cambodia for its defense.

 On February 25, 1971, the President submitted a foreign policy report to Congress, saying again that the war in Indochina was "of one piece," that because of North Vietnamese infiltration in Cambodia "We faced the prospect of one large enemy base camp 600 miles along South Vietnam's flank;" and that our policy for Cambodia included "air missions against enemy supplies and personnel that pose a potential threat to South Vietnam or seek to establish base areas relevant to Vietnam." United States Foreign Policy for the 1970's: Building for Peace, 7 Presidential Documents 305, 328, 332.

 On November 17, 1971, the so-called Mansfield amendment became law by action of Congress with the President's approval, and expressed the United States policy "to terminate at the earliest practicable date all military operations of the United States in Indochina." The pertinent portions of this amendment, which was part of the Appropriations Authorizations-Military Procurement Act, 1972, state:

 
Sec. 601. (a) It is hereby declared to be the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina, and to provide for the prompt and orderly withdrawal of all United States military forces at a date certain, subject to the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government and an accounting for all Americans missing in action who have been held by or known to such Government or such forces. The Congress hereby urges and requests the President to implement the aboveexpressed policy by initiating immediately the following actions:
 
(1) Establishing a final date for the withdrawal from Indochina of all military forces of the United States contingent upon the release of all American prisoners of war held by the Government of North Vietnam and forces allied with such Government and an accounting for all Americans missing in action who have been held by or known to such Government or such forces.
 
(2) Negotiate with the Government of North Vietnam for an immediate cease-fire by all parties to the hostilities in Indochina.
 
(3) Negotiate with the Government of North Vietnam for an agreement which would provide for a series of phased and rapid withdrawals of United States military forces from Indochina in exchange for a corresponding series of phased releases of American prisoners of war, and for the release of any remaining American prisoners of war concurrently with the withdrawal of all remaining military forces of the United States by not later than the date established by the President pursuant to paragraph (1) hereof or by such earlier date as may be agreed upon by the negotiating parties.

 In the Defense Appropriation Act of 1972 (P.L. 92-204), approved December 18, 1971, Congress specified:

 
Sec. 738(a) Not to exceed $2,500,000,000 of the appropriations available to the Department of Defense during the current fiscal year shall be available for their stated purposes to support; (1) Vietnamese and other free world forces in support of Vietnamese forces (2) local forces in Laos and Thailand; and for related costs, on such terms and conditions as the Secretary of Defense may determine: . . . Provided further, that nothing in clause (1) of the first sentence of this subsection shall be construed as authorizing the use of any such funds to support Vietnamese or other free world forces in actions designed to provide military support and assistance to the Government of Cambodia or Laos: Provided further that nothing contained in this section shall be construed to prohibit support of actions required to insure the safe and orderly withdrawal or disengagement of U.S. Forces from Southeast Asia, or to aid in the release of Americans held as prisoners of war.

 This language was continued in all subsequent military authorization or appropriations acts. See Appropriations Authorization-Military Procurement Act, 1972, P.L. 92-156, 85 Stat. 423, November 17, 1971, Sec. 501; Military Procurement Act, 1973, P.L. 92-436, 86 Stat. 734, September 26, 1972, Sec. 601; Department of Defense Appropriation Act, 1973, P.L. 92-570, 86 Stat. 1184, October 26, 1972, Sec. 737.

 In the Foreign Assistance Act, 1971, approved on February 7, 1972, the Congress expressly stated that limited foreign aid to Cambodia "shall not be construed as a commitment by the United States to Cambodia for its defense." P.L. 92-226, 22 U.S.C. § 2415(g). The Act recognized the existence of bombing in Cambodia, in language which both sides cite. The pertinent provisions of the Act read as follows:

 
Sec. 655. Limitations Upon Assistance to or for Cambodia. -- (a) Notwithstanding any other provision of law, no funds authorized to be appropriated by this or any other law may be obligated in any amount in excess of $341,000,000 for the purpose of carrying out directly or indirectly any economic or military assistance, or any operation, project, or program of any kind, or for providing any goods, supplies, materials, equipment, services, personnel, or advisers in, to, for, or on behalf of Cambodia during the fiscal year ending June 30, 1972.
 
. . .
 
(c) No funds may be obligated for any of the purposes described in subsection (a) of this section in, to, for, or on behalf of Cambodia in any fiscal year beginning after June 30, 1972, unless such funds have been specifically authorized by law enacted after the date of enactment of this section. In no case shall funds in any amount in excess of the amount specifically authorized by law for any fiscal year be obligated for any such purpose during such fiscal year.
 
(d) The provisions of subsections (a) and (c) of this section shall not apply with respect to the obligation of funds to carry out combat air operations over Cambodia.
 
(e) After the date of enactment of this section, whenever any request is made to the Congress for the appropriation of funds for use in, for, or on behalf of Cambodia for any fiscal year, the President shall furnish a written report to the Congress explaining the purpose for which such funds are to be used in such fiscal year.
 
. . .
 
Sec. 656. Limitations on United States Personnel and Personnel Assisted by United States in Cambodia. -- The total number of civilian officers and employees of executive agencies of the United States Government who are citizens of the United States and of members of the Armed Forces of the United States (excluding such members while actually engaged in air operations in or over Cambodia which originate outside Cambodia) present in Cambodia at any one time shall not exceed two hundred. The United States shall not, at any time, pay in whole or in part, directly or indirectly, the compensation or allowances of more than eighty-five individuals in Cambodia who are citizens of countries other than Cambodia or the United States. For purposes of this section, "executive agency of the United States Government" means any agency, department, board, wholly or partly owned corporation, instrumentality, commission, or establishment within the executive branch of the United States Government. (Emphasis added).

 On February 9, 1972, the President stated to Congress that North Vietnam continued to threaten the legitimate governments in Laos and Cambodia "in order to further its attacks on South Vietnam," and stated that "In Cambodia, operations are at the request of the Government and serve to relieve enemy pressures against Cambodia as well as South Vietnam." United States Foreign Policy for the 1970's: The Emerging Structure of Peace, 8 Presidential Documents 235, 343-45.

 On April 18, 1972, testimony before the House of Representatives Committee on Armed Services stated that a significant portion of the Navy and Air Force incremental war costs of $2,023,000,000 for fiscal 1972 "could be attributed to operations in Laos and Cambodia." Cong. Rec. 9173. Some information presented at that time was classified and made available for inspection only by members of Congress.

 Events in 1973

 On January 27, 1973, the parties participating in the Paris Conference on Vietnam signed an Agreement on Ending the War and Restoring Peace in Vietnam, which stated in Article 20(a):

 
. . . The parties participating in the Paris Conference on Vietnam undertake to refrain from using the territory of Cambodia and the territory of Laos to encroach on the sovereignty and ...

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