The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, District Judge.
This case was brought by 29 Members of Congress against Ronald Reagan, individually and in his capacity as President of the United States, Caspar W. Weinberger, individually and in his capacity as Secretary of Defense, and Alexander M. Haig, Jr., individually and in his capacity as Secretary of State.* Plaintiffs have alleged that defendants have supplied military equipment and aid to the government of El Salvador in violation of the War Powers Clause of the Constitution, the War Powers Resolution, 50 U.S.C. §§ 1541-1548, and Section 502B of the Foreign Assistance Act of 1961, 22 U.S.C. § 2304. More specifically, plaintiffs aver that a civil war is now in progress throughout El Salvador, with the Salvadoran Revolutionary Government Junta and its armed forces on one side, and the Democratic Revolutionary Front and its armed forces known as the Faribundo Marti National Liberation Front (FMLN) on the other. According to the complaint, in addition to the provision of monetary aid and military equipment, the defendants have dispatched at least 56 members of the United States Armed Forces to El Salvador in aid of the Junta. These forces allegedly are in situations where imminent involvement in hostilities is clearly indicated by the circumstances, and are allegedly taking part in the war effort and assisting in planning operations against the FMLN. Plaintiffs claim that this involvement violates Article 1, Section 8, Clause 11 of the Constitution, granting to Congress the exclusive power to declare war, as implemented by the War Powers Resolution (WPR). The WPR requires that absent a declaration of war, a report be made to the Congress within 48 hours of any time when United States Armed Forces have been introduced into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,
and that 60 days after a report is submitted or is required to be submitted, the President shall terminate any use of United States Armed Forces unless Congress declares war, enacts a specific authorization for such use of United States Armed Forces, or extends the 60-day period for 30 additional days. WPR §§ 4, 5(b), 50 U.S.C. §§ 1543, 1544(b). No report pursuant to the WPR has been made, and American forces have remained more than 60 days since they allegedly were introduced into a situation of hostilities or imminent hostilities without a declaration of war.
A cause of action is also stated under Section 502B of the Foreign Assistance Act of 1961, which prohibits the provision of security assistance to "any country the government of which engages in a consistent pattern of gross violations of internationally recognized human rights," which, plaintiffs contend, is the situation in El Salvador. A separate cause of action was originally stated under various provisions of international law (First Amended Complaint, Third Cause of Action), but plaintiffs have since stated that they recognize that there is no cause of action under international law, except as specifically implemented by Section 502B of the Foreign Assistance Act. Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss at 15-16.
Plaintiffs seek declaratory judgments that the actions of defendants have violated the above-described provisions of law, and a writ of mandamus and/or an injunction directing that defendants immediately withdraw all United States Armed Forces, weapons, and military equipment and aid from El Salvador and prohibiting any further aid of any nature.
Oral argument was held on defendants' motion to dismiss, and amicus curiae briefs were accepted from the group of 16 Senators and 13 Members of Congress which had previously moved to intervene.
Defendants have urged several grounds for dismissal: that the complaint presents a non-justiciable political question, that plaintiffs have not established standing, that the Court should exercise its equitable discretion to dismiss, and that there is no private right of action under the statutory provisions invoked by plaintiffs. Defendants contend that all of these grounds for dismissal have been given additional force by the passage in December, 1981 of the International Security and Development Cooperation Act of 1981, Pub.L. No. 97-113, 95 Stat. 1519 (1981), which (at § 728) specifically authorizes economic and military assistance to El Salvador, including the assignment of members of the Armed Forces to El Salvador to carry out functions under the Foreign Assistance Act of 1961 or the Arms Export Control Act. However, the 1981 Act is not dispositive of the cause of action under the WPR. It is not claimed that it constitutes the specific authorization as required by Section 8(a) of the WPR, 50 U.S.C. § 1547(a). That section states that authority to introduce armed forces into hostilities or imminent hostilities shall not be inferred from any other provision of law unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or situations of imminent hostilities and states that it is intended to constitute specific statutory authorization within the meaning of the WPR. The 1981 Act clearly does not do so. Also, plaintiffs argue that while the Act may demonstrate Congressional approval for a training function for U.S. forces in El Salvador, it does not demonstrate assent to what they claim is actually occurring, that is, involvement of those forces in hostilities and imminent hostilities.
The War Powers Resolution
If the merits were reached, the Court would have to decide whether the Resolution is applicable to the American military presence in El Salvador, and if so, what remedial action is appropriate. The Court decides that the cause of action under the WPR in its present posture is non-justiciable because of the nature of the factfinding that would be required, and that the 60-day automatic termination provision is not operative unless a report has been submitted or required to be submitted by Congress or a court.
In support of their position, defendants have submitted the declaration of Lieutenant General Ernest Graves, Director of the Defense Security Assistance Agency, whose responsibilities include the administration and oversight of all security assistance programs conducted by the Department of Defense, (Ex. 8 to Defendants' Motion to Dismiss), and a statement by the Department of State provided to Congressman William Broomfield in response to questions about the applicability of the WPR to the dispatch of military personnel to El Salvador and reprinted in the Congressional Record. (Ex. 17 to Defendants' Motion to Dismiss.) According to General Graves, the Military Mobile Training Teams which have been dispatched to El Salvador since November, 1979 have the sole function of training Salvadoran military personnel so as to create a self-training capability in particular skills, and have never served as advisors, accompanied military units on combat operations, or given those units advice on or worked with them to plan or coordinate the actual performance of offensive or defensive combat operations. Although not exactly claiming that American military personnel have never been exposed to hostile fire, Graves asserts that at no time has insurgent activity directly or immediately threatened the security of training personnel sufficiently to warrant withdrawal of those individuals. The State Department statement echoes General Graves' assessment of the situation. It states that U.S. forces in El Salvador have not and will not act as combat advisors, accompany Salvadoran forces in combat, on operational patrols, or in any situation where combat is likely, and that they have not been subject to attack.
In contrast, plaintiffs contend that American military personnel in El Salvador are taking part in coordinating the war effort and are assisting in planning specific operations against the FMLN. Also, many of the 56 military personnel
are alleged to work in and around areas where there is heavy combat. First Amended Complaint at 5-7. Two armed attacks on locations where U.S. military personnel were stationed are described in the Complaint, and another is described in Plaintiffs' Opposition to Defendants' Motion to Dismiss and Exhibit 4X thereto.
More recently, plaintiffs have supplemented their pleadings to bolster their contention that American forces in El Salvador have been introduced into hostilities or imminent hostilities. They rely upon two news articles. The first is to the effect that U.S. Armed Forces are "fighting side by side" with government troops battling against the FMLN. The second concerns a General Accounting Office (GAO) report which reportedly disclosed that U.S. Military personnel in El Salvador are drawing "hostile fire pay," and that a tentative Pentagon ruling that all of El Salvador qualified as a "hostile fire area" was reversed for "policy reasons," possibly to avoid the necessity of reporting to Congress under the WPR. (The actual GPO report has not been submitted.)