Air University Review, July-August 1976
First Lieutenant Stephen M. Millett
In the summer of 1973 a strange episode in the history of the Air Force took place. Under orders of the President, the Air Force was engaged in the bombing of Communist positions in Cambodia in support of the tottering war effort of the Lon Nol government in Pnompenh. Congress, in opposition to the President's policy, tacked onto an appropriation bill of 1 July 1973 a section that would cut off funds for this operation by 15 August. In the meantime, a federal district judge in Brooklyn issued an unprecedented injunction to halt the bombing immediately. These events touched off a major legal and constitutional struggle with profound political and military implications. A review of this case sheds considerable light on the perplexing constitutional problems of the whole American military involvement in Southeast Asia, which is still of considerable interest.
the initial suit
Before 1973 there had been numerous attempts by opponents of the war in Southeast Asia to bring the constitutional and legal aspects of the war into federal courts. Their objective apparently was to prod the national judiciary into interposing itself in the public controversy over American military involvement in South Vietnam. All these earlier attempts had failed, however, since the courts consistently refused to hear such cases because of their essentially political and military nature.1
The federal court suit to stop the bombing of Cambodia was filed on 13 April 1973, by Congresswoman Elizabeth Holtzman (D, New York) and four Air Force officers: Captain Michael Flugger of New York City, Captain James H. Strain of Oklahoma, Captain Donald E. Dawson of Connecticut, and First Lieutenant Arthur Watson of Rome, New York. The first three were B-52 pilots who were not at that time flying missions over Cambodia. Captain Dawson had a personal interest in the suit in which he hoped the federal courts would rule that the bombings of Cambodia were illegal; he was facing court-martial proceedings in June for refusing an order to fly a B-52 mission over Cambodia. Two of the other officers had been grounded for similar reasons.2
The suit was brought before federal district court Judge Orrin C. Judd of Brooklyn. Judge Judd, a Republican appointed to the bench by President Johnson in 1968, had refused on an earlier occasion to rule on a similar case. But on 13 June 1973 he granted the motion of the plaintiffs for a summary judgment and dismissed the motion of the government attorneys to dismiss the case because the plaintiffs had no legal standing to present their suit.3
The attorneys from the American Civil Liberties Union who were handling the case for Congresswoman Holtzman and the Air Force officers argued that the bombings were unconstitutional since Congress had never given authorization for them. They further contended that the Air Force missions over Cambodia constituted a new military operation, even the initiation of a new war, in light of the Southeast Asian cease--fire agreement of 29 January1973. The government attorneys argued on the other hand that the Cambodian operations were merely a continuation of the larger war in Southeast Asia and thereby legal in light of congressional appropriations for the American military effort in Southeast Asia.4
Judge Judd delivered his opinion on the Cambodian bombing case on Wednesday, 25 July 1973. "The question here," he decided," is not one posed by the Government whether aerial action in Cambodia is the termination of a continuing war or the initiation of a new and distinct war but whether Congress has authorized bombing in Cambodia after the withdrawal of American troops from Vietnam and the release of prisoners of war." The basis of his opinion was that Congress had given no explicit authority for continued American military activity in Southeast Asia after the cease-fire agreement of 24 January 1973. The judge's conclusion was that the President had given an unconstitutional order to continue the bombing of Cambodia. Therefore, he issued an injunction to end the Air Force operations over that country, effective at 1600 on Friday, 27 July.5
the political compromise
Congress had already taken action in the bombing controversy before Judge Judd issued his injunction. There had been great indignation and apprehension on Capitol Hill that the continued bombing of Cambodia would jeopardize the long-awaited truce agreement of the preceding January. There was also growing distrust of President Nixon's political wisdom in both foreign and domestic affairs. For several years congressmen had criticized the White House for its alleged usurpation of war powers by its management of the war in Vietnam. Furthermore, the Watergate scandal had surfaced in April. Congressional suspicions of White House evildoings seemed to be greatly reinforced by public disclosure of covert espionage at home and secret bombings abroad.
The war in Cambodia had continued even after the American agreement with the North Vietnamese to end their hostilities in South Vietnam. It is true that the domestic political situation in Pnompenh was different from that in Saigon, yet the turmoil in Cambodia had been inseparably intertwined with the war in Vietnam since the spring of 1970, if not earlier. There had been no political agreement on Cambodia formulated in January, only a mutual pledge by the United States and North Vietnam to respect the sovereignty, territorial integrity, and "neutrality" of Cambodia. They did agree to "put an end to all military activities in Cambodia and Laos, totally withdraw from and refrain from re-introducing into these two countries troops, military advisors, and military personnel, armaments munitions and war material."6
The United States continued its aerial combat role over Cambodia as the battles between the Lon Nol government and the Communist Khmer Rouge continued. It is estimated that the Air Force dropped 140,000 tons of ordnance over Cambodia from March though May of 1973. Then, on 30 June, the Communists launched a massive offensive in order to isolate the capital from the sea. President Nixon authorized a step-up in American bombing to break the impact of that offensive. Fighter bombers from Thailand conducted over 200 missions a day, and B-52s from Thailand and Guam flew some 40 missions a day over Cambodia.7
Congressional opposition to President Nixon's policy intensified during May and June. Henry Kissinger met with the Senate Foreign Relations Committee in secret to inform its members of the negotiations that were underway to reach a cease-fire in Cambodia. The administration apparently believed that the bombing was vital, both as a military measure to halt Communist gains in the field and as a diplomatic lever in the intensified negotiations, especially with Peking. Congress, however, saw the situation in a different light. It passed an appropriation bill that would have immediately cut off funds for the Cambodian bombings. President Nixon vetoed this on Wednesday, 27 June, and the House failed to override the veto by 35 votes.8
Then came the Communist offensive on Friday which threatened to cut off Pnompenh. On the same day the White House appealed to Congress not to oppose the bombings for six weeks more, pending negotiations. House Minority Leader Gerald Ford (R, Michigan) announced that the President would accept a compromise to halt Air Force operations by 15 August. It was a true political compromise since neither the White House nor Congress was pleased with it. One congressman objected that the compromise date would implicitly mean congressional authorization of a military strategy that it had never endorsed. Yet Senator Hubert Humphrey (D, Minnesota) correctly observed that "no matter how much we pontificate, we do not have the votes to end this war without some agreement with the man in the White House."9
On 1 July both houses of Congress passed the Second Supplemental Appropriations Act of 1973 and the Continuing Appropriations Act of 1974. Each bill contained the provision that no funds were to be used for American military operations in or above North Vietnam, South Vietnam, Laos, or Cambodia on or after 15 August 1973. For the first time since the American military buildup in South Vietnam in 1965, Congress resolved to trim the President's powers as Commander in Chief by denying him the money for military activities. President Nixon signed the two appropriation acts, and his aides informed congressmen that he would terminate the bombings on 15 August.10
war of appeals and writs
On 27 July, the day Judge Judd's injunction was to take effect, a panel of the Court of Appeals for the Second Circuit held oral argumentation on whether to lift the injunction. It unanimously granted a stay of injunction, which allowed the Air Force to continue its operations pending appeal of Judge Judd's decision by government attorneys. The lawyers for the plaintiffs appealed immediately to Associate Justice Thurgood Marshall of the United States Supreme Court to reinstate the injunction. Since the Supreme Court was in summer recess, Justice Marshall himself held a hearing on the matter in Washington, D.C. On Wednesday, 1 August, he decided that he would not lift the stay imposed by the Court of Appeals.11
On the night of 1 August, attorney Norman Siegel of the American Civil Liberties Union flew from Washington, D.C., to Seattle, and then drove 145 miles to the summer retreat of Justice William O. Douglas at Goose Prairie, Washington. Justice Douglas agreed to hear the appeal to reinstate the injunction on Friday at the nearby town of Yakima. He heard oral argumentation on that day and wrote a short opinion, which was released publicly on Saturday morning in Washington, D.C.12
In an astonishing opinion, Justice Douglas reversed his colleague's decision and granted an injunction to stop the Cambodian bombing eleven days before the deadline date of 15 August. He viewed this matter as a capital case and granted the injunction as though it were a stay of execution for a condemned man sentenced to death by the domestic criminal court. "When a stay in a capital case is before us, we do not rule on guilt or innocence," he observed. "By the same token, I do not sit today to determine whether the bombing of Cambodia is constitutional. . . . Denial of the application before me would catapult our airmen as well as Cambodian peasants into the death zone."13
Yet it was clear that Justice Douglas had acted on his personal conviction that the Cambodian operation was improper if not illegal and immoral. In reference to the famous steel seizure case of 1952, he wrote that "if Truman could not seize it [property] in violation of the Constitution, I do not see how any president can take 'life' in violation of the Constitution."14 He also made mention in the same opinion to "our Cambodian caper." Nearly two months later, Justice Douglas made a speech at Middle-town, Ohio, in which he warned that the greatest threat to American society was the "spectre of the so--called presidential war." He further asserted that "if we can stand by and let the presidential war be the accepted standard for military activity . . . I fear the country is doomed."15
Justice Douglas's injunction lasted just six hours and ten minutes. Immediately after his opinion became public, the Deputy Solicitor General applied for a new stay of the injunction to Chief Justice Warren Burger, who in turn referred the motion to Justice Marshall. Marshall telephoned all the other justices for their advice, and at 1500 he stayed Douglas's injunction on procedural ground. It was obvious that Justice Marshall had had the support of his colleagues from the beginning of the matter, whereas Douglas had acted only on his own convictions. Meanwhile, the Chief Justice refused to reconvene the entire Court to hear the case on its merits.16
As though the weekend legal battles were not extraordinary enough, new developments on Monday added greater public interest to the case. The Pentagon announced on Monday that B-52s had accidentally bombed a village south of Pnompenh and had killed more than 300 Cambodian civilians--exactly what Justice Douglas had feared might happen. It also became public at this time that the administration had ordered the secret bombing of Cambodia in 1969-1970, which had cost about$1.5 billion, unbeknown to Congress and the public.
courtof appeals decision
Three circuit court of appeals judges heard the oral argumentation of the case on Wednesday, 8 August. On the same day they announced their decision (2-1 vote) to reverse Judd's opinion. Judge Mulligan ruled that the courts had no authority to hear this case in the first place because it involved diplomatic policy and military strategy, which are by nature political rather than judicial questions. He rejected the argument that there had been no congressional support for the bombing policy: the Gulf of Tonkin Resolution, selective service acts, and appropriation bills had all implied support of Presidential policy in Southeast Asia. Mulligan further emphasized that the acts that called for the 15 August deadline of bombing implicitly condoned bombing before that date, which was the precise compromise between the White House and the Hill on this question. Finally, he ruled that Congresswoman Holtzman and the Air Force officers did not have legal standing to bring the case before federal courts.17
On 16 April 1974, the Supreme Court unanimously decided not to review the Cambodian bombing case. The only reason given was that it raised essentially political rather than judicial questions. Be that as it may, it was a moot case. The bombing did end on 15 August 1973, proving that political compromise had been far more effective in changing policy than judicial action.18
the War Powers Act
The political epilogue of the Cambodian bombing case was the enactment of the War Powers Act (Javits bill). The House of Representatives passed its version of the Bill on 18 July 1973, and the Senate passed another version two days later. A Conference Committee agreed on a compromise text, which was sent to the White House. President Nixon vetoed it on 24 October, as anticipated. But surprisingly, both chambers passed the bill again over the veto, by a vote of 75-18 in the Senate and 284-135 in the House. It was the first of nine Presidential vetoes that were overridden by Congress in 1973, which further indicated the eroding political power of the Nixon administration in face of the explosive Watergate scandal.19
The War Powers Act requires that the President notify the Speaker of the House and the President Pro Tempore of the Senate within 48 hours after he has ordered American armed services into a combat or imminent hostile situation abroad. If Congress does not expressly authorize this action within 60 days, the President must withdraw all forces. Congress is to grant its approval by a declaration of war or a specific legislative act; implicit approval is not to be assumed based on unspecific appropriation bills, ratified treaties which do not specify American military commitments, or other general acts. If Congress disapproves of the President's actions, the act empowers Congress to pass a concurrent resolution (which would not be subject to veto) to withdraw forces engaged in hostilities overseas before the 60-day deadline.20
There has already been a debate among legal scholars on the constitutionality of the War Powers Act.21 But the crux of the issue concerning the scope of the President's powers as Commander in Chief is not as much constitutional as political. President Johnson was able to implement his Vietnam policy not primarily because of the inherent powers of his office but rather because of his political strengths in Congress.
Even though the public unpopularity of the Vietnam war effort cost him the great influence he once enjoyed with Congress in the mid-1960s, President Johnson could always count on a majority of each house to pass the appropriation and draft laws required to implement his policy.
President Nixon enjoyed much of this same authority until 1973. The election of 1972 appeared to be an overwhelming mandate of the people for Nixon to complete his Vietnam-negotiated settlement, especially in light of the outspoken views on this policy by Senator George McGovern. The Deputy Assistant Secretary of State put this fact bluntly in March 1974 when asked to rationalize the continued bombing of Cambodia: "The justification is the reelection of President Nixon."22 What undermined Nixon's second administration was not a foreign policy or military strategy, but a domestic political crisis. This became evident in July 1974 when the House Judiciary Committee (of which Congresswoman Holtzman is a member) voted to impeach the President on three articles alleging domestic abuses of power but rejected an article of impeachment for the secret bombing of Cambodia.
Whether the War Powers Act is constitutional or not may be settled by the courts in the years to come. Probably the courts will try to avoid a case that will place definitive boundaries on the President's diplomatic and military powers, just as they have in the last few years. Politically, however, it would seem wise for the time being for President Ford to conform to the stipulations of the War Powers Act. If, however, he should ever face a direct conflict between his constitutional responsibility to defend the United States itself and its unquestionable foreign interests and the War Powers Act, he must act according to the former and let the lawyers battle out the latter in the courts after the crisis has passed.
There are several lessons to be drawn from the Cambodian bombing case for the armed forces in general and for the Air Force in particular. At the highest level of command, diplomatic policy as well as the military strategy that flows from it is a political matter, not judicial. Litigation attempts to interfere with that policy have been consistently unsuccessful. The ultimate authority of the President lies in his constitutional duties as the Commander in Chief and Head of State. The authority of Congress rests in its legislative powers to declare war and raise, equip, and finance the armed services.
For the Air Force officer, the Cambodian bombing case raises the spectre of individual doubts whether to execute an order the legality of which may be in question. If an officer goes beyond an order in an illegal manner, he can be held personally accountable for his actions before a court-martial. On the other hand, if an officer refuses to carry out an order because of personal judgment and the order is determined later to have been legal, he may be held personally accountable for his inaction before a court-martial.
The Cambodian bombing case helps to resolve this dilemma of the Air Force officer. When an officer receives an assignment from superiors who are clearly executing the policy of the President and the Department of Defense, he must presume that it is legal. If there is doubt, the officer could consult the local Judge Advocate General's office; but of course this will not always be practical or possible, especially in a combat environment. Yet if the order appears illegal or inconsistent with Air Force policy, the officer may decide not to execute it. But he must be very confident of his own judgment and rely on an inner reserve of intelligence and courage.
Air Force Institute of Technology
1. Mitchell v. United States, 386 U. S. 972 (1967); Mora v. McNamara, 389 U. S. 934 (1967); Massachusetts v. Laird, 400 U. S. 886 (1970); DaCoasta v. Laird, 448 F.2d 1368, 405 U. S. 979 (1972).
2. New York Times, July 26, 1973, p. 4; New York Times, April 16, 1974, p. 10.
3. Holtzman v. Richardson, 361 F. Supp. 544 (June 13, 1973).
4. New York Times, July 26, 1973, p. 1; Time, August 13, 1973, p. 7.
5. Holtzman v. Schlesinger, 361 F. Supp. 553 (July 25, 1973); New York Times, July 26, 1973, pp. 1, 4; quote on p. 4.
6. "Agreement on Ending the War and Restoring Peace in Vietnam," Department of State Bulletin, February 12, 1973, p. 173.
7. New York Times, July 1, 1973, pp. 1, 3, E4; U. S. News & World Report, July 16, 1973, pp. 52-53.
8. New York Times, July 1, 1973, pp. 52-53.
9. Ibid., p. E4.
10. U. S. Code, Congressional and Administrative News, 93rd Congress, 1st Session, 1973, I, 149-53; Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston, 1973), pp. 196-98, 256, 293.
11. Holtzman v. Schlesinger, 484 F.2d 1307 (August 8, 1973), p. 1308; New York Times, July 29, 1973, p. l9.
12. Time, August 13, 1967, p. 7.
13. Text of Justice Douglasís opinion in New York Times, August 5, 1973, p. 2.
15. Dayton (Ohio) Daily News, September 29, 1973, p. 2.
16. New York Times, August 5, 1973, pp. 1, 3.
17. Holtzman v. Schlesinger, 484 F.2d 1307 (August 8, 1973), pp. 1308-15.
18. New York Times, April 16, 1974, p. 10; United States Law Week, Supreme Court Proceedings, 42: 3577 (April 16, 1974).
19. U. S. News & World Report, November 19, 1973, p. 91; New York Times, July 22, 1973, p. E3.
20. U. S. Code, Congressional and Administrative News, 93rd Congress, 1st Session, 1973, I, 614-19, and II, 2346-67.
21. Eugene V. Rostow, "Great Cases Make Bad Law: the War Powers Act," 50 Texas Law Review 833 (1972) and Raoul Berger, "War-Making by the President," 121 University of Pennsylvania Law Review 29 (1972).
22. Quoted by Schlesinger, The Imperial Presidency, p. 198.
Lieutenant Stephen M. Millett(Ph.D., Ohio State University) is an assistant professor of humanities, School of Engineering, Air Force Institute of Technology. He has published five articles and is the author of A Selected Bibliography of American Constitutional History. His primary interests concern the interaction of domestic institutions with military and foreign policy.
The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.
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