Chapter 8 - General War

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Vietnam War

Introduction to the Vietnam War - read this for the history

What are other conflicts with roots in colonial empires?

What would winning have meant? Vietnam is now communist - does that matter? Why don't we worry about communists any more?

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Key points

Once the dominos were safe, Vietnam was only a proxy for the US/Communist Block conflict The same conflicts played out in the mideast

Johnson and Nixon lied about the conduct of the war How did this change the relationship between the

Congress and the President? Vietnam was the first modern media war

Lying to the media became dangerous How have we managed the media in the Iraq wars?

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Pentagon Papers

What were the Pentagon Papers? What was their political significance? They are discussed more fully in Chapter 37 Their publication and the attempts to stop it were

a major national drama

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The Legality of United StatesParticipation in the Defense of Viet-Nam

What is SEATO? What did we promise to the signers of SEATO? At ratification, did this include long term on the ground

military support? What changed after ratification?

Who should judge this change, the president or congress?

What is the argument that an attack on Vietnam was a threat to the US?

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Was the SEATO Treaty Valid?

Who signed the treaty for Vietnam? Is Vietnam being attacked by a foreign country? How does North Vietnam characterize the war? Does this sort of war trigger a mutual defense

treaty? Does the UN intervene is this sort of war?

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The Tokin Gulf Resolution

How was the Tokin Gulf incident like WMDs in the Iraq war?

Did it contemplate war? Mr. Cooper: Then, looking ahead, if the President

decided that it was necessary to use such force as could lead into war, we will give the authority by this resolution?

Mr. Fulbright: That is the way I would interpret it. If a situation later developed in which we thought the approval should be withdrawn it could be withdrawn by concurrent resolution.

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Legal Status of the Resolution?

Is the Tokin Gulf Resolution a declaration of war? Is it anything at all, legally? If not, what does that tell us about presidential

power? Why didn't it matter when Congress repealed the

Tokin Gulf Amendment? What did Congress keep doing?

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Why isn't a Declaration of War Necessary for the Vietnam War?

It may be suggested that a declaration of war is the only available constitutional process by which congressional support can be made effective for the use of United States armed forces in combat abroad. But the Constitution does not insist on any rigid formalism. It gives Congress a choice of ways in which to exercise its powers. In the case of Viet-Nam the Congress has supported the determination of the President by the Senate’s approval of the SEATO treaty, the adoption of the joint resolution of August 10, 1964, and the enactment of the necessary authorizations and appropriations . . . .

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Lincoln on Expanding The Right to Repel Attacks

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose. [2 Abraham Lincoln, The Writings of Abraham Lincoln 51 (Arthur Brooks Lapsley ed., 1906).]

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Authorization of Force against Terrorism after 9/11

use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons. [Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001).]

Is this as broad as the Tonkin Gulf Resolution? Does it authorize war?

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Orlando v. Laird United States Court of Appeals, 443 F.2d 1039, cert. denied, 404 U.S. 869 (1971)

Who are plaintiffs? What is their claim? Why do they have standing when other citizens do not? What is the ‘‘mutual participation’’ standard for

prosecution of the war? Why is resolving this a political question?

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What is plaintiff's theory on why Congress was not free to reject the war?

This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war. A Congressman wholly opposed to the war’s commencement and continuation might vote for the military appropriations and for the draft measures because he was unwilling to abandon without support men already fighting. An honorable, decent, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture. We should not construe votes cast in pity and piety as though they were votes freely given to express consent. (Mitchell v. Laird)

Challenges Based on International Law

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United States v. Sisson, 294 F. Supp. 515, 517 (D. Mass. 1968)

...the court noted that ‘‘[f]or argument’s sake one may assume that a conscript has a standing to object to induction in a war declared contrary to a binding international obligation.’’ But the court refused to rule on a charge that U.S. operations in Vietnam violated such an obligation, calling the case political and nonjusticiable on grounds that the court (especially a court of the state accused of the violation) was ‘‘incapable of eliciting the facts during a war.’’

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Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988)

...the court indicated that if Congress adopted a foreign policy that violated a peremptory norm of international law, ‘‘that policy might well be subject to challenge in domestic court.’’ The court mentioned as examples of such norms the prohibitions on slavery, torture, summary execution, and genocide.

And in Nicaragua v. United States, 1986 I.C.J. 14, 100 [para. 190], the World Court declared that ‘‘the prohibition of the use of force . . . constitutes a conspicuous example of a rule in international law having the character of jus cojens.’’

Do you think these rulings make it more likely that a domestic court today would adjudicate a claim of unprovoked U.S. aggression? Where does Sosa fit in?

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Laos

Congress passed this amendment to the Department of Defense Appropriation Act, 1970: ‘‘In line with the expressed intention of the President of the

United States, none of the funds appropriated by this Act shall be used to finance the introduction of American ground combat troops into Laos or Thailand.’’

In February 1971, President Nixon, observing the strict language of the amendment, approved the invasion of northern Laos by a 30,000-troop South Vietnamese force supported by U.S. helicopters and bombers. Viewed as a major test of the Vietnamization program, this attempt to cut off troops and materiel from the Ho Chi Minh Trail ended in failure.

Does the war in Laos and Cambodia meet the mutual participation test?

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Area and Use Limitations.

May Congress properly approve the induction of troops and the purchase of military supplies and then prohibit the President’s use of those forces in certain areas?

Congress has occasionally purported to do so—for example, in the Selective Service Act of 1940, Pub. L. No. 76-783, 54 Stat. 885 (1940), which prohibited the assignment of U.S. conscriptees to duty outside the Western Hemisphere, except in U.S. possessions.

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Armed Forces Appropriations Authorization Act of 1971 (Mansfield Amendment)

(a) It is hereby declared to be the policy of the United States to terminate at the earliest possible 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 held by or known to such Government or such forces .

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Nixon's Signing Statement

Section 601 expresses a judgment about the manner in which the American involvement in the war should be ended. However, it is without binding force or effect, and it does not reflect my judgment about the way in which the war should be brought to a conclusion. My signing of the bill that contains this section, therefore, will not change the policies I have pursued and that I will continue to pursue toward this end. [3 Pub. Papers 1114 (Nov. 17, 1971).]

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Holtzman v. Schlesinger, 484 F.2d 1307 (1973)?

What did the district court order that was being appealed?

Sec. 108. Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.

How does this show congressional support for the bombing at issue in this case? (Was it before 15 Aug?)