Holtzman v. Schlesinger

Citation361 F. Supp. 553
Decision Date25 July 1973
Docket NumberNo. 73-C-537.,73-C-537.
PartiesElizabeth 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.
CourtU.S. District Court — Eastern District of New York

Neuborne & Friedman, New York City by Burt Neuborne, Leon Friedman, New York City, of counsel, for plaintiffs.

Robert A. Morse, U. S. Atty., E. D. N. Y., by James D. Porter, Jr., Brooklyn, N. Y., Cyril Hyman, Asst. U. S. Attys., New York City, of counsel, for defendants.

Earle K. Moore, New York City, for Council for Christian Social Action of the United Church of Christ, and others, amici curiae.

Rabinowitz, Boudin & Standard, New York City, for Congressman Parren J. Mitchell and others, amici curiae by Michael Krinsky and Eric Lieberman, New York City, of counsel.

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 above-expressed 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
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3 cases
  • Holtzman v. Schlesinger, 1132
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 8, 1973
    ...from a judgment of the United States District Court, Eastern District of New York, Hon. Orrin G. Judd, District Judge, dated July 25, 1973, 361 F.Supp. 553, granting plaintiffs' motion for summary judgment and providing both declaratory and injunctive relief. The judgment declared that "the......
  • Korioth v. Brisco, 75-2058
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
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    ...effectiveness of his vote." 511 F.2d at 436.20 See Mitchell v. Laird, 1973, 159 U.S.App.D.C. 344, 488 F.2d 611, 613, Holtzman v. Schlesinger, E.D.N.Y., 361 F.Supp. 553, Rev'd, 2 Cir. 1973, 484 F.2d 1307, Cert. denied, 1974, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286.21 See Holtzman v. Schl......
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    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • August 8, 1973
    ...his opinion on July 25, 1973, and would have been before the Second Circuit Court of Appeals on August 8. See Holtzman v. Schlesinger, 361 F.Supp. 553 (E.D.N.Y. 1973), rev'd 484 F.2d 1307 (2d Cir. 1973). But Congress chose not to test that question but, rather, selected a course of action w......
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    • May 1, 2021
    ...no matter how far over the line federal officers tread."). (105) Abbasi, 137 S. Ct. at 1861. (106) See, e.g., Holtzman v. Schlesinger, 361 F. Supp. 553 (E.D.N.Y.), rev'd, 484 F.2d 1307 (2d Cir. (107) See, e.g., E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094 (N.D. Cal. 2018), aff'd......
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    • University of Pennsylvania Law Review Vol. 148 No. 5, May 2000
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    ...in or over Cambodia, Laos, North Vietnam and South Vietnam" after the expiration of 45 days). (170) See Holtzman v. Schlesinger, 361 F. Supp. 553, 565 (E.D.N.Y. (171) Id. (172) See Holtzman v. Schlesinger, 414 U.S. 1304, 1310, 1316, 1321 (1973) (granting an application for a stay of the dis......

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