the reality of our involvement in El Salvador. This discrepancy as to factual matters is also evident in the contrast between plaintiffs' allegations regarding the human rights situation in El Salvador, and the President's certifications under the Foreign Assistance Act, discussed infra. Plaintiffs' allegations, which are to be accepted as true for the purpose of a motion to dismiss, are, at a minimum, disturbing. This nonetheless does not mean that judicial resolution is appropriate to vindicate, allay or obviate plaintiffs' concerns.
The Court concludes that the factfinding that would be necessary to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in El Salvador renders this case in its current posture non-justiciable. The questions as to the nature and extent of the United States' presence in El Salvador and whether a report under the WPR is mandated because our forces have been subject to hostile fire or are taking part in the war effort are appropriate for congressional, not judicial, investigation and determination. Further, in order to determine the application of the 60-day provision, the Court would be required to decide at exactly what point in time U.S. forces had been introduced into hostilities or imminent hostilities, and whether that situation continues to exist. This inquiry would be even more inappropriate for the judiciary.
In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), Justice Brennan identified several categories of "political questions". The question here belongs to the category characterized by a lack of judicially discoverable and manageable standards for resolution. The Court disagrees with defendants that this is the type of political question which involves potential judicial interference with executive discretion in the foreign affairs field. Plaintiffs do not seek relief that would dictate foreign policy but rather to enforce existing law concerning the procedures for decision-making. Moreover, the issue here is not a political question simply because it involves the apportionment of power between the executive and legislative branches. The duty of courts to decide such questions has been repeatedly reaffirmed by the Supreme Court. See e.g. Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 2703-04, 73 L. Ed. 2d 349 (1982); United States v. Nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974); Buckley v. Valeo, 424 U.S. 1, 123, 96 S. Ct. 612, 684, 46 L. Ed. 2d 659 (1976).
However, the question presented does require judicial inquiry into sensitive military matters. Even if the plaintiffs could introduce admissible evidence concerning the state of hostilities in various geographical areas in El Salvador where U.S. forces are stationed and the exact nature of U.S. participation in the conflict (and this information may well be unavailable except through inadmissible newspaper articles), the Court no doubt would be presented conflicting evidence on those issues by defendants. The Court lacks the resources and expertise (which are accessible to the Congress) to resolve disputed questions of fact concerning the military situation in El Salvador. See Atlee v. Laird, 347 F. Supp. 689 (E.D.Pa.1972) (three judge court), aff'd without opinion, 4ll U.S. 921, 411 U.S. 911, 93 S. Ct. 1545, 36 L. Ed. 2d 304 (1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.1973), cert. denied, 416 U.S. 936, 94 S. Ct. 1935, 40 L. Ed. 2d 286 (1974).
Admittedly, a case could arise with facts less elusive than these. For example, this Circuit in Mitchell v. Laird, 159 U.S. App. D.C. 344, 488 F.2d 611 (D.C.Cir.1973), held that the court could determine the truth of allegations to the effect that the United States had been involved in hostilities in Indo-China for at least seven years, which hostilities had resulted in one million deaths, including those of 50,000 Americans, and for which the United States had spent at least one hundred billion dollars. If such allegations were true, the court stated, it would conclude that the United States was at war in Indo-China. Were a court asked to declare that the War Powers Resolution was applicable to a situation like that in Vietnam, it would be absurd for it to decline to find that U.S. forces had been introduced into hostilities after 50,000 American lives had been lost.
However, here the Court faces a dispute as to whether a small number of American military personnel who apparently have suffered no casualties have been introduced into hostilities or imminent hostilities. The subtleties of factfinding in this situation should be left to the political branches. If Congress doubts or disagrees with the Executive's determination that U.S. forces in El Salvador have not been introduced into hostilities or imminent hostilities, it has the resources to investigate the matter and assert its wishes. The Court need not decide here what type of congressional statement or action would constitute an official congressional stance that our involvement in El Salvador is subject to the WPR, because Congress has taken absolutely no action that could be interpreted to have that effect. Certainly, were Congress to pass a resolution to the effect that a report was required under the WPR, or to the effect that the forces should be withdrawn, and the President disregarded it, a constitutional impasse appropriate for judicial resolution would be presented. Goldwater v. Carter, 444 U.S. 996, 100 S. Ct. 533, 62 L. Ed. 2d 428 (1976) (Powell, J., concurring).
Even if the factfinding here did not require resolution of a political question, this Court would not order withdrawal of U.S. forces at this juncture. At most, it could order that a report be filed. This conclusion is based upon the structure and legislative history of the WPR.
The War Powers Resolution, which was considered and enacted as the Vietnam war was coming to an end, was intended to prevent another situation in which a President could gradually build up American involvement in a foreign war without congressional knowledge or approval, eventually presenting Congress with a full-blown undeclared war which on a practical level it was powerless to stop. While Congress always had the power to deny appropriations supporting a military engagement, it found it politically impossible to do so after large numbers of American lives had been placed at risk and American honor committed. The purpose of the WPR was to give Congress both the knowledge and the mechanism needed to reclaim its constitutional power to declare war. In the words of Senator Javits, one of its authors and prime sponsors, the Resolution
is an effort to learn from the lessons of the last tragic decade of war in Vietnam which has cost our nation so heavily in blood, treasure, and morale. The War Powers Act would assure that any future decision to commit the United States to any warmaking must be shared in by the Congress to be lawful.