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DELLUMS v. BUSH

December 13, 1990

RONALD V. DELLUMS, et al., Plaintiffs,
v.
GEORGE BUSH, Defendant


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

This is a lawsuit by a number of members of Congress *fn1" who request an injunction directed to the President of the United States to prevent him from initiating an offensive attack against Iraq without first securing a declaration of war or other explicit congressional authorization for such action.

I

 The factual background is, briefly, as follows. On August 2, 1990, Iraq invaded the neighboring country of Kuwait. President George Bush almost immediately sent United States military forces to the Persian Gulf area to deter Iraqi aggression and to preserve the integrity of Saudi Arabia. The United States, generally by presidential order and at times with congressional concurrence, also took other steps, including a blockade of Iraq, which were approved by the United Nations Security Council, and participated in by a great many other nations.

 On November 8, 1990, President Bush announced a substantial increase in the Persian Gulf military deployment, raising the troop level significantly above the 230,000 then present in the area. At the same time, the President stated that the objective was to provide "an adequate offensive military option" should that be necessary to achieve such goals as the withdrawal of Iraqi forces from Kuwait. Secretary of Defense Richard Cheney likewise referred to the ability of the additional military forces "to conduct offensive military operations."

 The Department raises a number of defenses to the lawsuit -- most particularly that the complaint presents a non-justiciable political question, that plaintiffs lack standing to maintain the action, that their claim violates established canons of equity jurisprudence, and that the issue of the proper allocation of the war making powers between the branches is not ripe for decision. These will now be considered seriatim.

 II Political Question

 It is appropriate first to sketch out briefly the constitutional and legal framework in which the current controversy arises. Article I, Section 8, Clause 11 of the Constitution grants to the Congress the power "To declare War." *fn4" To the extent that this unambiguous direction requires construction or explanation, *fn5" it is provided by the framers' comments that they felt it to be unwise to entrust the momentous power to involve the nation in a war to the President alone; *fn6" Jefferson explained that he desired "an effectual check to the Dog of war"; *fn7" James Wilson similarly expressed the expectation that this system would guard against hostilities being initiated by a single man. *fn8" Even Abraham Lincoln, while a Congressman, said more than half a century later that " no one man should hold the power of bringing" war upon us. *fn9"

 The congressional power to declare war does not stand alone, however, but it is accompanied by powers granted to the President. Article II, Section 1, Clause 1 and Section 2 provide that "the executive powers shall be vested in a President of the United States of America," and that "the President shall be Commander in Chief of the Army and Navy . . . ."

 It is the position of the Department of Justice on behalf of the President that the simultaneous existence of all these provisions renders it impossible to isolate the war-declaring power. The Department further argues that the design of the Constitution is to have the various war- and military-related provisions construed and acting together, and that their harmonization is a political rather than a legal question. In short, the Department relies on the political question doctrine.

 That doctrine is premised both upon the separation of powers and the inherent limits of judicial abilities. See generally, Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 92 L. Ed. 568, 68 S. Ct. 431 (1948). In relation to the issues involved in this case, the Department of Justice expands on its basic theme, contending that by their very nature the determination whether certain types of military actions require a declaration of war is not justiciable, but depends instead upon delicate judgments by the political branches. On that view, the question whether an offensive action taken by American armed forces constitutes an act of war (to be initiated by a declaration of war) or an "offensive military attack" (presumably undertaken by the President in his capacity as commander-in-chief) is not one of objective fact but involves an exercise of judgment based upon all the vagaries of foreign affairs and national security. Motion to Dismiss slip op. at 21. Indeed, the Department contends that there are no judicially discoverable and manageable standards to apply, claiming that only the political branches are able to determine whether or not this country is at war. Such a determination, it is said, is based upon "a political judgment" about the significance of those facts. Under that rationale, a court cannot make an independent determination on this issue because it cannot take adequate account of these political considerations.

 This claim on behalf of the Executive *fn10" is far too sweeping to be accepted by the courts. *fn11" If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an "interpretation" would evade the plain language of the Constitution, and it cannot stand.

 That is not to say that, assuming that the issue is factually close or ambiguous or fraught with intricate technical military and diplomatic baggage, the courts would not defer to the political branches to determine whether or not particular hostilities might qualify as a "war." However, here the forces involved are of such magnitude and significance as to present no serious claim that a war would not ensue if they became engaged in combat, and it is therefore clear that congressional approval is required if Congress desires to become involved.

 Mitchell v. Laird, 159 U.S. App. D.C. 344, 488 F.2d 611, 614 (D.C. Cir. 1973), is instructive in that regard. In Mitchell, the Court of Appeals for this Circuit ruled there is "no insuperable difficulty in a court determining" the truth of the factual allegations in the complaint: that many Americans had been killed and large amounts of money had been spent in military activity in Indo-China. In the view of the appellate court, by looking at those facts a court could determine "whether the hostilities in Indo-China constitute[d] . . . a 'war,' . . . within . . . the meaning of that term in Article I, Section 8, Clause 11." 488 F.2d at 614. Said the Court:

 
Here the critical question to be initially decided is whether the hostilities in Indo-China constitute in the Constitutional sense a "war". . . [If the plaintiffs' allegations are true,] then in our opinion, as apparently in the opinion of President Nixon, . . . there has been a war in Indo-China. Nor do we see any difficulty in a court facing up to the question as to whether because of the war's duration and magnitude the President is or was without power to continue the war without Congressional approval.

 488 F.2d at 614. In short, Mitchell stands for the proposition that courts do not lack the power and the ability to make the factual and legal determination of whether this nation's military actions constitute war for purposes of the constitutional War Clause. *fn12" See also, Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970).

 Notwithstanding these relatively straightforward propositions, the Department goes on to suggest that the issue in this case is still political rather than legal, because in order to resolve the dispute the Court would have to inject itself into foreign affairs, a subject which the ...


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