Drinan v. Nixon

• Citation: 364 F. Supp. 854
• Decision Date: 08 August 1973
• Docket Number: Civ. A. No. 73-1424.
• Parties: Robert F. DRINAN et al., Plaintiffs, v. Richard M. NIXON et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

364 F. Supp. 854

Robert F. DRINAN et al., Plaintiffs, v. Richard M. NIXON et al., Defendants.

Civ. A. No. 73-1424.

United States District Court, D. Massachusetts.

August 8, 1973.

Allan R. Rosenberg, Boston, Mass., Peter Weiss, Center for Constitutional Rights, New York City, for plaintiffs.

William A. Brown, Asst. U. S. Atty., Boston Mass., for defendants.

OPINION

TAURO, District Judge.

This is an action seeking declaratory judgment that the aerial combat operations currently being conducted by the United States in Cambodia are in violation of domestic and international law, and requesting appropriate injunctive relief. Plaintiffs challenge the legality of these military operations after the withdrawal of United States forces from South Vietnam and the release of the prisoners of war.

Plaintiffs are four members of the United States House of Representatives and an airman in the United States Air Force stationed at L. G. Hanscom Field, Massachusetts. Defendants are Richard M. Nixon, President of the United States, Elliott Richardson, former Secretary of Defense, William Clements, Acting Secretary of Defense, and John McLucus, Acting Secretary of the Air Force.

Plaintiffs have moved for summary judgment upon that portion of the complaint seeking declaratory relief.

Defendants have moved to dismiss on the grounds that the action constitutes an unconsented suit against the sovereign, that plaintiffs lack standing to maintain the action, that the action presents a nonjusticiable political question, and that the complaint fails to state a claim upon which relief can be granted.

The motion to dismiss raises a threshold issue: does plaintiffs' challenge to the military activity in Cambodia constitute a nonjusticiable "political question." See Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). For the reasons set forth below, we conclude that the issues raised involve political questions, in the legal sense of the term, which are beyond the authority of a federal court to hear or determine. We do not, therefore, reach the other grounds for dismissal asserted by defendants.¹

What do we mean by the term political question and how do the issues involved in this case fit within the framework of that definition?

Justice Brennan writing for the Supreme Court in the case of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962), provides us with a comprehensive definition of what constitutes a "political question":

It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

369 U.S., at 217, 82 S.Ct., at 710.

Although not all issues involving foreign relations are political questions,² courts are particularly discriminating in determining the propriety of considering issues involving the conduct of foreign affairs by the executive and legislative branches. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Atlee v. Laird, 347 F.Supp. 689, 697 (E. D.Pa.1972) (three-judge court), affm'd summarily, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973). There are compelling and practical reasons which underscore the necessity for judicial restraint in this area. Courts have neither inherent expertise nor ready access to the type of current information necessary to render informed and valid judgments as to the wisdom of executive and congressional actions involving this country's relations with other sovereigns.³

Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature; but many such questions uniquely demand single-voiced statement of the Government's views.

Baker v. Carr, 369 U.S. 186, 211, 82 S. Ct. 691, 707, 7 L.Ed.2d 663 (1962).

Absent a clear abdication of their constitutional responsibilities, we must rely on the good faith efforts of those in the so-called "political branches" to preserve, protect, and enhance the position of the United States in the world community. In the exercise of their discretion they are accountable only to the people of this country whose judgment is most effectively voiced by means of the electoral process.

By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority, and in conformity with his orders. In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political: they respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-166, 2 L.Ed. 60 (1803).

This concept of judicial restraint in such matters was recognized by Judge Wyzanski in the case of Mitchell v. Laird, 155 U.S.App.D.C. 88, 476 F.2d 533, 538-539 (1973):

When on January 20, 1969 President Nixon took office, and when on the same or even later dates the other individual defendants took their present offices, they were faced with a belligerent situation not of their creation. Obviously, the President could not properly execute the duties of his office or his responsibility as Commander-in-Chief by ordering hostilities to cease on the very day he took office. Even if his predecessors had exceeded their constitutional authority, President Nixon's duty did not go beyond trying, in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the nation — its defense, its honor, its morality.

Whether President Nixon did so proceed is a question which at this stage in history a court is incompetent to answer. A court cannot procure the relevant evidence: some is in the hands of foreign governments, some is privileged. Even if the necessary facts were to be laid before it, a court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith. Otherwise a court would be ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs must be allowed to the President if this country is to play a responsible role in the council of the nations.

In short, we are faced with what has traditionally been called a "political question" which is beyond the judicial power conferred by Article III of the United States Constitution. And on that ground the complaint was properly dismissed by the District Court.

This is not to say that the courts may never have a proper role to play in the area of foreign relations, particularly with respect to involvement of this country in a war. On the contrary, should it be apparent that the political branches themselves are clearly and resolutely in opposition as to the military policy to be followed by the United States, such a conflict could no longer be regarded as a political question, but would rise to the posture of a serious constitutional issue requiring resolution by the judicial branch.

In order to rise to the level of a constitutional question, however, the conflict between the executive and legislative branches must be clear and at least apparently incapable of resolution, absent judicial intervention. Stated another way, a federal court may judge the propriety of war activities of the executive and legislative branches only when there is a clear conflict between the actions taken by them.

This doctrine was enunciated clearly by Chief Judge Coffin in the case of Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971), in which the Commonwealth of Massachusetts and certain members of the armed forces sought a declaration that the United States military involvement in Vietnam at the time was unconstitutional, as well as an injunction preventing the Secretary of Defense from ordering Massachusetts inhabitants to duty in Southeast Asia unless Congress declared war or otherwise authorized United States participation.

Emphasizing the "prolonged period of Congressional support of executive activities" in the conduct of the war, 451 F.2d, at 34, the Court of Appeals affirmed dismissal of the complaint. Concluding that the "joint concord" of Congress and the executive precluded interference by the judiciary, Circuit Judge Coffin (now Chief Judge) wrote:

Because the branches are not in opposition, there is no necessity of determining boundaries. Should either branch be opposed to the continuance of hostilities, however, and present

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