Mora v. McNamara/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice STEWART concurs, dissenting.

Mr. Justice MARSHALL took no part in the consideration or decision of this petition.

The questions posed by Mr. Justice Stewart cover the wide range of problems which the Senate Committee on Foreign Relations recently explored, in connection with the SEATO Treaty of February 19, 1955, and the Tonkin Gulf Resolution.

Mr. Katzenbach, representing the Administration, testified that he did not regard the Tonkin Gulf Resolution to be 'a declaration of war' and that while the Resolution was not 'constitutionally necessary' it was 'politically, from an international viewpoint and from a domestic viewpoint, extremely important.' He added:

'The use of the phrase 'to declare war' as it was used in the     Constitution of the United States had a particular meaning in      terms of the events and the practices which existed at the      time it was adopted. * *  *

'[I]t was recognized by the Founding Fathers that the     President might have to take emergency action to protect the      security of the United States, but that if there was going to      be another use of the armed forces of the United States, that      was a decision which Congress should check the Executive on,      which Congress should support. It was for that reason that     the phrase was inserted in the Constitution.

'Now, over a long period of time, * *  * there have been many      uses of the military forces of the United States for a      variety of purposes without a congressional declaration of      war. But it would be fair to say that most of these were     relatively minor uses of force. * *  *

'A declaration of war would not, I think, correctly reflect     the very limited objectives of the United States with respect      to Vietnam. It would not correctly reflect our efforts there,     what we are trying to do, the reasons why we are there, to      use an outmoded phraseology, to declare war.'

The view that Congress was intended to play a more active role in the initiation and conduct of war than the above statements might suggest has been espoused by Senator Fulbright (Cong.Rec. Oct. 11, 1967, p. 14683-14690), quoting Thomas Jefferson who said: 'We have already given in example one effectual check to  the Dog of war by transferring the power of letting him   loose from the Executive to the Legislative body, from   those who are to spend to those who are to pay.'

These opposed views are reflected in the Prize Cases, 2 Black 635, 17 L.Ed. 459, a five-to-four decision rendered in 1863. Mr. Justice Grier, writing for the majority, emphasized the arguments for strong presidential powers. Justice Nelson, writing for the minority of four, read the Constitution more strictly, emphasizing that what is war in actuality may not constitute war in the constitutional sense. During all subsequent periods in our history through the Spanish-American War, the Boxer Rebellion, two World Wars, Korea, and now Vietnam-the two points of view urged in the Prize Cases have continued to be voiced.

A host of problems is raised. Does the President's authority to repel invasions and quiet insurrections, his powers in foreign relations and his duty to execute faithfully the laws of the United States, including its treaties, justify what has been threatened of petitioners? What is the relevancy of the Gulf of Tonkin Resolution and the yearly appropriations in support of the Vietnam effort? The London Treaty (59 Stat. 1546), the SEATO Treaty (6 U.S.T. 81, 1955), the Kellogg-Briand Pact (46 Stat. 2343), and Article 39 of Chapter VII of the UN Charter (59 Stat. 1043) deal with various aspects of wars of 'aggression.'

Do any of them embrace hostilities in Vietnam, or give rights to individuals affected to complain, or in other respects give rise to justiciable controversies?

There are other treaties or declarations that could be cited. Perhaps all of them are wide of the mark. There are sentences in our opinions which, detached from their context, indicate that what is happening is none of our business:

'Certainly it is not the function of the Judiciary to     entertain private litigation-even by a citizen-which      challenges the legality, the wisdom, or the propriety of the      Commander-in-Chief in sending our armed forces abroad or to      any particular region.' Johnson v. Eisentrager, 339 U.S. 763,      789, 70 S.Ct. 936, 94 L.Ed.2d 1255.

We do not, of course, sit as a committee of oversight or supervision. What resolutions the President asks and what the Congress provides are not our concern. With respect to the Federal Government, we sit only to decide actual cases or controversies within judicial cognizance that arise as a result of what the Congress or the President or a judge does or attempts to do to a person or his property.

In Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281, the Court relieved a person of the death penalty imposed by a military tribunal, holding that only a civilian court had power to try him for the offense charged. Speaking of the purpose of the Founders in providing constitutional guarantees, the Court said:

'They knew * *  * the nation they were founding, be its      existence short or long, would be involved in war; how often or how long continued, human foresight could not      tell; and that unlimited power, wherever lodged at such a      time, was especially hazardous to freemen. For this, and     other equally weighty reasons, they secured the inheritance      they had fought to maintain, by incorporating in a written      constitution the safeguards which time had proved were      essential to its preservation. Not one of these safeguards     can the President, or Congress, or the Judiciary disturb,      except the one concerning the writ of habeas corpus.' Id.,      125.

The fact that the political branches are responsible for the threat to petitioners' liberty is not decisive. As Mr. Justice Holmes said in Nixon v. Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759:

'The objection that the subject matter of the suit is     political is little more than a play upon words. Of course     the petition concerns political action but it alleges and      seeks to recover for private damage. That private damage may     be caused by such political action and may be recovered for      in a suit at law hardly has been doubted for over two hundred      years, since Ashby v. White, 2 Ld.Raym. 938, 3 id. 320, and     has been recognized by this Court.'

These petitioners should be told whether their case is beyond judicial cognizance. If it is not, we should then reach the merits of their claims, on which I intimate no views whatsoever.