Berk v. Laird

• Decision Date: 16 September 1970
• Docket Number: No. 70-C-697.,70-C-697.
• Citation: 317 F. Supp. 715
• Parties: 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.
• Court: U.S. District Court — Eastern District of New York

317 F. Supp. 715

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.

No. 70-C-697.

United States District Court, E. D. New York.

September 16, 1970.

Leon Friedman, Burt Neuborne, Theodore C. Sorensen, Kay Ellen Hayes, New York City, for plaintiff, Norman Dorsen, Marc Luxemburg, Peter P. Smith, Mark Alcott, New York City, of counsel.

Edward R. Neaher, U. S. Atty., E.D. N.Y., Brooklyn, for defendants, Robert A. Morse, Chief Asst. U. S. Atty., James D. Porter, Jr., Cyril Hyman, Robert Rosenthal, Asst. U. S. Attys., of counsel.

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 executive-legislative 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...