DaCosta v. Laird, 216

Decision Date17 January 1973
Docket NumberNo. 216,Docket 72-1743.,216
Citation471 F.2d 1146
PartiesErnest DaCOSTA, Appellant, v. Melvin LAIRD, Individually and as Secretary of Defense, et al., Appellees.
CourtU.S. Court of Appeals — Second Circuit

Burt Neuborne, New York City (Leon Friedman, New York Civil Liberties Union, New York City, on the brief), for appellant.

James D. Porter, Jr., Asst. U. S. Atty., E. D. New York (Robert A. Morse, U. S. Atty., L. Kevin Sheridan and Cyril Hyman, Asst. U. S. Attys., E. D. New York, on the brief), for appellee.

Before KAUFMAN, ANDERSON and OAKES, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

We are called upon to decide the very specific question whether the Secretary of Defense, the Secretaries of the Army, Navy and Air Force, and the Commander of American military forces in Vietnam,1 may implement the directive of the President of the United States, announced on May 8, 1972, ordering the mining of the ports and harbors of North Vietnam and the continuation of air and naval strikes against military targets located in that battle-scarred land. The appellant seeks a declaratory judgment2 that the military operations undertaken pursuant to that directive are unlawful in the absence of explicit Congressional authorization, and asks for what he terms "appropriate equitable relief." Like any American with the most rudimentary knowledge of the political history of this Nation, we are aware of the familiar adage that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question."3 We fear, however, that DeTocqueville's apothegm loses some of its force with age and over-use and, like all generalizations, is of interest as much for the situations it fails to describe as for those it accurately characterizes. Unless deTocqueville believed that "judicial resolution" embraced a determination by the courts that they lack the power to resolve a political question, we are of the view that this case would prove an exception to his observation.

On another occasion, this Court acting within its powers and duties under the Constitution, has been obliged to rule on the legality of the war in Vietnam, Orlando v. Laird, 443 F.2d 1039 (2nd Cir.), cert. denied 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971). Here, however, the appellant4 invites us to extend the reach of judicial inquiry with respect to the Vietnam war into the domain of tactical and strategic military decisions ordered by the President in his capacity as Commander-in-Chief of the Armed Services. The district court denied DaCosta's motion for summary judgment and for injunctive relief under Rules 56 and 65, F.R.Civ.P. In our view, the matter pressed by DaCosta in this case is a nonjusticiable political question. Accordingly, we remand to the district court with instructions that the complaint be dismissed.

I.

Ordinarily, we preface our discussion of the legal issues in a case with a recitation of the underlying facts. Even that threshold task is made difficult in a matter such as this, where the "facts" concerning the methods employed in waging war are difficult to sift, sui generis in nature and not of a kind ordinarily involved in framing a question for judicial resolution. Indeed, the difficulty encountered by a domestic judicial tribunal in ascertaining the "facts" of military decisions exercised thousands of miles from the forum, lies at the heart of the determination whether the question is a "political" one, see United States v. Sisson, 294 F.Supp. 515 (D. Mass.1968); where there are serious doubts concerning a court's power or fitness to decide the question raised, the political question doctrine may come into play.

The following, however, may be stated with relative certainty. The appellant, Ernest DaCosta, is a United States citizen, and was, at the time he commenced his action on May 11, 1972, a Specialist Fourth Class in the United States Army, stationed in Vietnam as a machine gunner, and assigned to combat duty.5 His complaint focuses upon military operations undertaken by the United States government pursuant to an executive directive announced to the public by the President in a television and radio address on May 8, 1972. The "record" in this case, to the extent it provides us with a factual context in which to set the dispute presently before us, consists of DaCosta's complaint, the government's answer, supporting affidavits submitted by each side, and the text of two addresses delivered by the President in the spring of 1972. From this skimpy fare, although the events were matters of great public moment, and hence wide-spread coverage, we have attempted to reconstruct the following narrative.

In early April, 1972, apparently at the start of a new "spring offensive," three North Vietnamese divisions crossed the demilitarized zone into South Vietnam. Shortly thereafter, three additional divisions of communist troops crossed the South Vietnamese border at points further south. On April 25, it was announced that an agreement had been reached to resume plenary sessions of the Paris "peace talks," with the first meeting of the negotiations scheduled to be held on April 27, 1972. The evening before these negotiating sessions were to resume, President Nixon addressed the Nation over radio and television from his office in the White House. The President's stated purpose was to give "a firsthand report on the military situation in Vietnam, the decisions I have made with regard to the role of the United States in the conflict and the efforts we are making to bring peace at the negotiating table." The President began by noting that American troop strength, numbering 549,000 men in January 1969, had been sharply reduced over a period of three and one-half years to 69,000 men and that casualty rates had been cut by 95%. He noted what he described as the administration's most recent proposals for a negotiated peace — including a cease fire, exchange of prisoners of war, withdrawal of forces and internationally supervised elections in South Vietnam — terms he said he believed were "generous." The President then commented on the presence of more than 120,000 North Vietnamese troops in South Vietnam; that presence, he said, marked "a clear case of naked and unprovoked aggression across an international border." The President reviewed an evaluation of the military situation in Indochina submitted by General Creighton Abrams, commander of American Troops in South Vietnam, which predicted that the enemy offensive would ultimately prove unsuccessful. Based upon his assessment of the military situation, President Nixon announced that the policy of "Vietnamization" was proceeding according to schedule and that an additional 20,000 American troops would be recalled within two months, lowering the troop ceiling to 49,000 men by July 1. Among other announcements, the President noted that air and naval attacks against military installations in the North would be continued. He stated:

We are not trying to conquer North Vietnam or any other country in this world. We want no territory. We seek no bases. We have offered the most generous peace terms — peace with honor for both sides — with South Vietnam and North Vietnam each respecting the other\'s independence.

The President said he could see the day when no more Americans would be involved in Vietnam, and urged the Nation to remain "steadfast" as "we come to the end of this long and difficult struggle."

Less than two weeks later, on May 8, 1972, the President again addressed the Nation in a television and radio broadcast. He began by discussing the "massive invasion" launched by the North Vietnamese in early April, "an invasion," he said "that was made possible by tanks, artillery and other advanced offensive weapons supplied to Hanoi by the Soviet Union and other Communist nations." The President commented on the mounting number of casualties, and noted that America's response had nonetheless been restrained. He pointed out that the United States had resumed negotiations at Paris, and that Dr. Henry Kissinger, in meetings with Soviet leaders for four days beginning on April 20, 1972, had learned of a new Russian interest in bringing the war to a speedy close. The President outlined the content of peace officers made to the North Vietnamese, and stated that "North Vietnam has met each of these offers with insolence and insult. They have flatly and arrogantly refused to negotiate an end to the war and bring peace. Their answer to every peace offer we have made has been to escalate the war." The President then said:

There are only two issues left for us in this war. First, in the face of a massive invasion do we stand by, jeopardize the lives of 60,000 Americans, and leave the South Vietnamese to a long night of terror? This will not happen. We shall do whatever is required to safeguard American lives and American honor.
Second, in the face of complete intransigence at the conference table do we join with our enemy to install a communist government in South Vietnam. We will not cross the line from generosity to treachery.
We have now a clear, hard choice among three courses of action: Immediate withdrawal of all American forces, continued attempts at negotiation, or decisive military action to end the war.

The President rejected the first alternative — immediate withdrawal — because in his view it would leave world peace in "grave jeopardy." He stated that the second course — negotiations — was preferred, and that America would continue to seek a negotiated settlement; but he claimed that North Vietnam's "arrogant" refusal to negotiate in good faith made this course unavailing. In addition, sole reliance on negotiations, he said, would give the enemy "the time he needs to press his aggression on the battlefield." Therefore, the President concluded that the only way "to stop the killing" was to...

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