The Vietnam War and International Law, Volume 4: The Concluding Phase

The Vietnam War and International Law, Volume 4: The Concluding Phase

EDITED BY RICHARD A. FALK
Copyright Date: 1976
Pages: 1066
https://www.jstor.org/stable/j.ctt13x161f
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    The Vietnam War and International Law, Volume 4: The Concluding Phase
    Book Description:

    This concluding volume ofThe Vietnam War and International Lawfocuses on the last stages of America's combat role in Indochina.

    The articles in the first section deal with general aspects of the relationship of international law to the Indochina War. Sections II and III are concerned with the adequacy of the laws of war under modern conditions of combat, and with related questions of individual responsibility for the violation of such laws.

    Section IV deals with some of the procedural issues related to the negotiated settlement of the war. The materials in Section V seek to reappraise the relationship between the constitutional structure of the United States and the way in which the war was conducted, while the final section presents the major documents pertaining to the end of American combat involvement in Indochina. A supplement takes account of the surrender of South Vietnam in spring 1975.

    Contributors to the volume-lawyers, scholars, and government officials-include Dean Rusk, Eugene V. Rostow, Richard A. Falk, John Norton Moore, and Richard Wasserstrom.

    Originally published in 1976.

    ThePrinceton Legacy Libraryuses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These paperback editions preserve the original texts of these important books while presenting them in durable paperback editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

    eISBN: 978-1-4008-6825-4
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Note of Acknowledgments
    (pp. vii-viii)
    Richard A. Falk
  3. Table of Contents
    (pp. ix-2)
  4. Introduction
    (pp. 3-8)
    Richard J. Barnet, Thomas Ehrlich, Tom J. Farer, Edwin Brown Firmage, G. W. Haight, Eliot D. Hawkins, Brunson MacChesney, Myres S. McDougal, John Norton Moore, Stephen M. Schwebel, Louis B. Sohn, John R. Stevenso, Howard J. Taubenfeld, Burns H. Weston and Richard A. Falk

    Over the past several years the Civil War Panel of the American Society of International Law has devoted considerable attention to the legal issues presented by the Vietnam War. Because of the complex and controversial character of these legal issues, the Panel has emphasized the educational importance of a balanced presentation of conflicting interpretations by competent scholars and public officials. To this end the Panel has sponsored a series of volumes published under the general titleThe Vietnam War and International Law.This fourth volume brings the series, but not necessarily the work of the Panel, to a close. The...

  5. I. Role of International Law and Organization
    • Law and National Security
      (pp. 11-24)
      JOHN NORTON MOORE

      The role of law in the management of national security has been debated throughout American history. Traces of the debate may be found as long ago as 1793 in the exchange between Hamilton and Jefferson about the relative importance of “interests” and “morality” in deciding whether the United States should support France in the war with England. Jefferson found an obligation to support France under the 1778 treaty of alliance and urged that the treaty obligation was binding on the nation. Hamilton countered that there was no obligation but even if there were it did not require the United States...

    • Law and the Indochina War: A Retrospective View
      (pp. 25-48)
      EDWIN BROWN FIRMAGE

      This century, from the Hague Conferences through the Vietnam War, has seen a profound change in attitudes toward the role of law as a constraint upon foreign policy. The Hague Conferences¹ represented at once an attempt, however feeble, by men of mixed motives to emplace fledgling prophylactic legal institutions upon the tendencies of the nation-states to resolve disputes by war, and at the same time to limit war’s destructiveness if prevention failed. World War I destroyed not only most of this superstructure, but also massive portions of the more fundamental institutions of the dynastic state system of the time. When...

    • American Attitudes Toward International Law as Reflected in “The Pentagon Papers”
      (pp. 49-93)
      PERRY L. PICKERT

      The legality of American intervention in Vietnam has been a key issue for both supporters and opponents of governmental policy. The government itself has used the SEATO Pact, the Geneva Accords, and claims of North Vietnamese aggression as justification for bombing North Vietnam and for introducing American combat troops into South Vietnam. Yet with all the debate over the legality of the war, little has been settled. The reason for the confusion is that there are few undisputed facts and the pertinent legal documents are flawed or ambiguous. None of the parties to the dispute can boast clean hands. All...

    • United Nations Peacekeeping: An Alternative for Future Vietnams
      (pp. 94-113)
      DONALD W. McNEMAR

      In the aftermath of the United States disengagement from Vietnam, American society faces the question: were there any alternatives to such massive unilateral intervention by the United States? Discussions on this point usually focus on past actions such as troop commitments, bombing halts, military tactics, and peace overtures, but the question can also be fruitfully examined from a broader perspective: would a multilateral, rather than a unilateral, response have been more appropriate? In short, can United Nations peacekeeping be viewed as an alternative to “future Vietnams?”

      The actual role played in the Vietnam situation by the United Nations was minimal...

    • The United Nations and the Conflict in Vietnam
      (pp. 114-144)
      M. S. RAJAN and T. ISRAEL

      The war in Vietnam, which has now happily ended, is undoubtedly the greatest tragedy that has overtaken the society of nations and the United Nations since the end of the Second World War: neither of these was able to do much to end the conflict. It has been a greater tragedy for the United Nations than for the society of nations in view of its avowed objectives: “to save succeeding generations from the scourge of war” and “to maintain international peace and security”.

      There is, however, a widespread impression that the United Nations had little or nothing to do with...

  6. II. Laws of War
    • Aftermath of Vietnam: War Law and the Soldier
      (pp. 147-175)
      L. C. GREEN

      According to the criminal law of most countries, the ordinary citizen is presumed to know the law and ignorance provides no defense. To some extent, in the Anglo-American system at least, a somewhat similar approach is adopted even where the civil law is concerned, for so much of civil liability depends upon the views of that imaginary—and perhaps imaginative—person: the ordinary reasonable man, the man on the Clapham omnibus. This robot who serves as a standard of behavior has made his appearance in every country to which the common law has been exported, although in some areas local...

    • Ratification of the Geneva Protocol on Gas and Bacterial Warfare: A Legal and Political Analysis
      (pp. 176-265)
      JOHN NORTON MOORE

      On November 25, 1969, President Nixon announced the initial results of a sweeping review of United States policy on chemical and biological warfare.¹ He reaffirmed the nation’s traditional policy of no-first-use of lethal chemical weapons and extended the policy to incapacitating chemicals. He also renounced the use under any circumstances of biological weapons and methods of warfare, and declared that the United States will confine its biological research to defensive measures and dispose of existing stocks of bacteriological weapons not required for defensive research. Finally, he indicated that the Administration would ask the Senate to advise and consent to the...

    • Weapons Potentially Inhumane: The Case of Cluster Bombs
      (pp. 266-282)
      MICHAEL KREPON

      The speaker is a retired colonel in the American army. He has seen three wars at close hand and still limps as the result of an encounter with a German land mine. When he talks about antipersonnel weapons, and about fighting a war in which civilians may be in the line of fire, he can still do so with complete authority and without reservations: “I’d just as soon see a dozen civilians go before one soldier.”

      The field commander’s concern on behalf of his men—a concern shared in armies throughout history—has been transformed into a particularly cruel reality...

    • Proscription of Ecocide: Arms Control and the Environment
      (pp. 283-286)
      ARTHUR H. WESTING

      It is axiomatic that warfare is detrimental to the environment. To begin with, the preparation for war is detrimental in several ways. It consumes scarce and nonrenewable resources, usually on a priority basis. It also generates a variety of pollutants during the manufacture and testing of the war materiel, thereby having an adverse effect on still other natural resources. The present arms race is particularly wasteful of our global resources [1]. Second, the practice of war is detrimental to the environment. Military action consumes nonrenewable resources, often at a lavish rate. And, of course, the battles debilitate the theater of...

    • Environmental Warfare and Ecocide
      (pp. 287-303)
      RICHARD A. FALK

      In Indochina during the past decade we have the first modern instance in which the environment has been selected as a ‘military’ target appropriate for comprehensive and systematic destruction. Such an occurrence does not merely reflect the depravity of the high-technology sensibilities of the war-planners. It carries out the demonic logic of counterinsurgency warfare, especially when the insurgent threat is both formidable and set in a tropical locale. Recourse to deliberate forms of environmental warfare is part of the wider military conviction that the only way to defeat the insurgent is to deny him the cover, the food, and the...

    • The Laws of Air Warfare: Are There Any?
      (pp. 304-325)
      HAMILTON DESAUSSURE

      Activity has increased within the United Nations recently to reexamine the laws of war, and to update them to meet the modern conditions of armed conflict. In a resolution adopted unanimously on 13 January 1969, UN Res 2444, the General Assembly emphasized the necessity for applying basic humanitarian principles to all armed conflicts and affirmed the three principles laid down by the International Committee of the Red Cross at their Vienna conference in 1965: First, that the rights of the parties to a conflict to adopt means of injuring the enemy are not unlimited; second, that the launching of attacks...

    • International Law Aspects of Repatriation of Prisoners of War During Hostilities
      (pp. 326-339)
      RICHARD A. FALK

      On September 2, 1972, the North Vietnamese Foreign Ministry issued a statement announcing the release of three American pilots who were being held in detention since their capture by North Vietnam. The statement gave no particular reason for the release except to affirm North Vietnam’s “lenient policy” and to indicate that the release was being made “on the occasion” of an annual independence day holiday called National Day. It was subsequently learned that the release was part of a wider amnesty, which included Vietnamese citizens who had been sent to jail for ordinary criminal activity.

      The North Vietnamese statement also...

    • International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply
      (pp. 340-357)
      HOWARD S. LEVIE

      In the July 1973 issue of theJournal,¹ there appeared an article with the above title written by Professor Richard Falk, in which he, in effect, advanced the thesis that the release of prisoners of war for repatriation during the course of hostilities in Vietnam to anad hocand self-styled “humanitarian organization” (which admittedly consisted solely of individuals who were vocal opponents of the United States participation in those hostilities) either constituted a valid and forward-looking interpretation of the provisions of the Geneva Convention of 1949 relative to the Treatment of Prisoners of War² (hereinafter referred to as “the...

    • Correspondence
      (pp. 358-360)
      RICHARD A. FALK

      As I find Professor Levie s careful reply¹ to my article on repatriation of prisoners of war during hostilities² both predictable and unconvincing, it seems almost purposeless to continue the exchange. He would presumably find any further effort on my part equally predictable and unconvincing. We speak past one another, not because one of us is a “good” international lawyer and the other is not (although I allow him this interpretation if he wishes it), but because we approach this subject matter from decisively different political perspectives and from adverse jurisprudential traditions. These differences may be worth elucidating, and I...

  7. III. War Crimes and Individual Responsibility
    • VIETNAM AND THE NUREMBERG PRINCIPLES: A COLLOQUY ON WAR CRIMES
      (pp. 363-420)
      Tom J. Farer, Robert G. Gard Jr. and Telford Taylor

      The Chairman has been kind enough to mention the book¹ I’ve written which has the same subject as this afternoon’s proceedings. That book was written a year ago; a good deal has happened in the intervening year, and I would like to concentrate on those happenings with special regard to the Calley and Medina trials and the Henderson trial now in progress. First, however, I think it would be helpful to the discussion and to my fellow panelists if I fill in some background material.

      As those of you who have been working in this field are aware, there are...

    • A Response to Telford Taylor’s “Nuremberg and Vietnam: An American Tragedy”
      (pp. 421-446)
      WALDEMAR A. SOLF

      Under the headline “Military Made the Scapegoat for Vietnam” Charles G. Moskos, Jr., Chairman of the Department of Sociology, Northwestern University, examines (1) the attitudes and behavior of combat soldiers in Vietnam and (2) the reaction of elite groups in our society. Professor Moskos commented:

      It is a cruel irony that so many of our national leaders and opinion shapers who were silent or supported the original intervention during the Kennedy administration now adopt moralistic postures in the wake of the horrors of that war. There appears to be emerging a curious American inversion of the old “stab in the...

    • After My Lai: The Case for War Crimes Jurisdiction Over Civilians in Federal District Courts
      (pp. 447-476)
      JORDAN J. PAUST

      In April 1971 the United States declared that it would not seek to prosecute United States ex-servicemen who have violated the international law of war in Vietnam. Only two justifications were given for the government’s failure to engage in a war crimes prosecution program. First, a rather dubious excuse for law enforcement rests on “the view of some government legal experts” that “the issue is ‘too hot’ politically now.”¹ Secondly, some legal experts within the government had expressed a doubt whether present federal law allows the trial of civilians for war crimes committed while in the military. Apparently this doubt...

    • The Justness of the Peace
      (pp. 479-492)
      RICHARD A. FALK and EUGENE V. ROSTOW

      The luncheon was presided over by Mr. Benjamin Busch, Chairman of the Section on International Law of the American Bar Association. The Chairman observed that the aim of this series of jointly sponsored luncheons was to join the halls of academia and the practitioners, since only through the study and wise application of international law would there be hope for peace and rule under law. In introducing the first speaker, he remarked that the Vietnam war must command our very serious and devoted attention. It has been the longest and most costly war in our history and has left us...

  8. IV. Settlement of the Vietnam War
    • Viet Nam 1974: A Revolution Unfulfilled
      (pp. 493-502)
      TRAN VAN DINH

      A grateful humankind tormented by the cruel war in Viet Nam breathed a sigh of relief at the signing of the Paris Agreement on January 27, 1973. In the ensuing months, Viet Nam became forgotten in a world beset by a bloody Middle East conflict, violences from Chile to Thailand, the American “Watergate Affair” and above all, the energy crisis.

      But while the signing of the Paris Agreement brought peace of mind to the peoples outside, it did not bring peace to the Vietnamese people themselves. In the first nine months after the cease-fire, an estimated 50,000 Vietnamese were killed,²...

    • One Year of Implementation of the Paris Agreement on Viet Nam
      (pp. 503-532)

      A year ago, on January 27, 1973, the Agreement on Ending the War and Restoring Peace in Viet Nam was signed in Paris.

      Under the Agreement, the United States undertakes to respect the independence, sovereignty, unity and territorial integrity of Viet Nam and the South Vietnamese people’s right to self-determination, to stop all its military activities in both zones of Viet Nam, to withdraw from South Viet Nam all its troops, military personnel, armaments, and war material, not to continue its military involvement or intervene in the internal affairs of South Viet Nam, and to contribute to healing the wounds...

    • The Supreme Court and the Vietnamese War
      (pp. 535-572)
      PHILIPPA STRUM

      Almost all the important political-economic-social conflicts arising throughout American history have been filtered through the Supreme Court, enabling it to perform two major functions within the American political process. Its primary function has been to place its legitimizing imprimatur upon resolutions originating with the “political” branches. Its second and related function, concentrated in the twentieth century, has been the self-appointed one of civil liberties ombudsman. Both roles were brought into question by the Vietnamese War.

      United States involvement in Southeast Asia has been a key—if notthekey—issue of American national politics in the 1960’s and 1970’s. Nevertheless,...

  9. V. Constitutional Structure and War-Making
    • War-Making Under the Constitution: The Original Understanding
      (pp. 573-603)
      CHARLES A. LOFGREN

      The first major public debate over the division of war-making power between Congress and the President occurred in mid-1793 following President Washington’s proclamation of American neutrality¹ in the war which had broken out between England and France at the beginning of that year. Defending Washington’s action in a series of newspaper articles under the disarming pseudonym of “Pacificus,” Alexander Hamilton, a participant in the Constitutional Convention six years earlier, argued that since war-making was by nature an executive function, Congress could exercise only those aspects of it which the Constitution specifically grants the legislature. These grants, being exceptions to the...

    • War-Making by the President
      (pp. 604-661)
      RAOUL BERGER

      To a nation wracked by interminable, undeclared war in Vietnam—described by an informed English observer as “the greatest tragedy that has befallen the United States since the Civil War”¹—the presidential power to commit it to such luckless adventures is of surpassing importance. Thirty-odd years of recurrent international crises, exploding against a background of superpower hostility such as had long been unknown to the American people, have fed swollen executive claims to war-making power, often with the acquiescence if not encouragement of Congress.²

      It is not my purpose to conduct yet another inquest into the propriety of the presidential...

    • The War-Making Powers: A Constitutional Flaw?
      (pp. 662-719)
      DON WALLACE JR.

      As the Vietnam War became more controversial, and as American emotions about it mounted, its legality was increasingly questioned.¹ The entry of United States troops into Cambodia in May 1970 elicited great emotion and much dispute.² Notwithstanding such controversy, the essential issue raised by Vietnam and Cambodia is not the legality of American actions perse. In fact, courts have declared our participation in Vietnam to be congressionally authorized and hence legal,³ and have declared the Cambodian invasion to be “tactical” and hence within the commander-in-chief’s constitutional powers.⁴ Rather, Vietnam raises once again a persisting constitutional question:⁵ does the Constitution make...

    • The Indochina War Cases in the United States Court of Appeals for the Second Circuit
      (pp. 720-744)
      SCOTT J. WENNER

      Between the years 1970–1973, a series of cases involving the Indochina War arose in the U.S. Court of Appeals for the Second Circuit. Each raised constitutional issues regarding the allocation of the war-making power between Congress and the President in the context of a war that was alleged by plaintiffs to be unconstitutional. The Second Circuit developed a principle governing the role of the judiciary in connection with the war-making power. As will be explained in this note, the judiciary was held to have some power to check the executive in its war-making activities, but this power was in...

    • Department of State Gives Views on Proposed War Powers Legislation
      (pp. 745-750)
      CHARLES N. BROWER

      I appreciate the opportunity to testify before this subcommittee on the subject of proposed war powers legislation. I am particularly pleased to be able to testify on what I consider a unique occasion; namely, the first time in the long history of deliberations on war powers legislation that we can consider these proposed bills free from the distraction of major American involvement in hostilities overseas and divorced from the special political pressures of an election year. The stunning foreign policy successes which President Nixon has achieved in his first term, precisely through the judicious exercise of his constitutional authority, must...

    • Great Cases Make Bad Law: The War Powers Act
      (pp. 751-818)
      EUGENE V. ROSTOW

      Responding to the bitterness and tragedy of Vietnam, a group of Senators led by Jacob K. Javits of New York proposes fundamentally to change the constitutional relationship between President and Congress in the field of foreign affairs.¹ They assert that the underlying cause of the Vietnam tragedy is a modern and most unconstitutional excess of presidential power—a shift in the rightful balance of authority between the two branches caused by presidential “usurpations” at least since the time of McKinley, and especially those they claim Lyndon B. Johnson made with regard to Vietnam.

      Ignoring their own repeated votes for Vietnam,...

  10. VI. Documentary Appendix 1:: Settlement of the Indochina War
    • Part A. Vietnam
      • Texts of (Paris) Agreement and Protocols on Ending the War and Restoring Peace in Vietnam
        (pp. 821-840)

        The Parties participating in the Paris Conference on Vietnam,

        With a view to ending the war and restoring peace in Vietnam on the basis of respect for the Vietnamese people’s fundamental national rights and the South Vietnamese people’s right to self-determination, and to contributing to the consolidation of peace in Asia and the world,

        Have agreed 011 the following provisions and undertake to respect and to implement them:

        The United States and all other countries respect the independence, sovereignty, unity, and territorial integrity of Viftnam as recognized by the 1954 Geneva Agreements on Vietnam.

        A cease-fire shall be observed throughout...

      • Transcript of Le Due Tho’s News Conference in Paris on Vietnam Accord
        (pp. 841-845)

        Dear friends, the struggle of the Vietnamese people for independence and liberty has lasted nearly 30 years. In particular, the resistance in the last 13 years with its many trials was the most difficult in the history of our people’s struggle against foreign invasion over several centuries.

        It is also the most murderous war in the history of the movement of national liberation of the oppressed peoples throughout the world.

        Finally, this war has deeply stirred the conscience of man-kind.

        The negotiations between our Government and the Government of the United States of America for a peaceful settlement of the...

      • An Interview With LY VAN SAU Of the Provisional Revolutionary Government Paris, January 31, 1973
        (pp. 846-848)

        You know that the Agreement has been signed. Officially the cease-fire has been in force since the 28th, but the news still talks of combat in many places. What does this show? It shows that although our government, our army, observes the cease-fire, the Saigon governmertt is violating the Agreement because it finds itself in a situation which is not favorable for them and they want to change the reality of South Vietnam. It is a reality that the popular forces are everywhere and that the population of South Vietnam is filled with enthusiasm by the Peace Agreement and turn...

      • Dr. Kissinger’s News Conference, January 24, 1973
        (pp. 849-863)

        Ladies and gentlemen: The President last evening presented the outlines of the agreement, and by common agreement between us and the North Vietnamese we have today released the texts. And I am here to explain, to go over briefly, what these texts contain and how we got there, what we have tried to achieve in recent months, and where we expect to go from here.

        Let me begin by going through the agreement, which you have read.

        The agreement, as you know, is in nine chapters. The first affirms the independence, sovereignty, unity, and territorial integrity, as recognized by the...

      • Act of the International Conference on Viet Nam, Signed at Paris March 2, 1973
        (pp. 864-866)

        With a view to acknowledging the signed Agreements; guaranteeing the ending of the war, the maintenance of peace in Viet-Nam, the respect of the Vietnamese people’s fundamental national rights, and the South Vietnamese people’s right to self-determination; and contributing to and guaranteeing peace in Indochina;¹

        Have agreed on the following provisions, and undertake to respect and implement them;

        The Parties to this Act solemnly acknowledge, express their approval of, and support the Paris Agreement on Ending the War and Restoring Peace in Viet-Nam signed in Paris on January 27, 1973, and the four Protocols to the Agreement signed on the...

      • Four-Party Joint Communique, Signed at Paris on Implementation of Viet Nam Agreement, June 13, 1973
        (pp. 867-870)

        The Parties signatory to the Paris Agreement on Knding the War and Restoring Peace in Viet-Nam, signed on January 27, 1973,

        Considering that strict respect and scrupulous implementation of all provisions of the Agreement and its Protocols by all the parties signatory to them are necessary to ensure the peace in Viet-Nam and contribute to the cause of peace in Indochina and Southeast Asia,

        Have agreed on the following points (in the sequence of the relevant articles in the Agreement):

        1. In conformity with Article 2 of the Agreement, the United States shall cease immediately, completely, and indefinitely aerial reconnaissance...

    • Part B. Laos
      • Lao Government of Vientiane-Lao Patriotic Forces: Agreement on Cease-Fire in Laos
        (pp. 873-880)

        In response to the supreme desires of His Majesty the King and the earnest aspirations of the people of all races throughout the country, who desire to see a rapid end to the war, the re-establishment and maintenance of peace in a lasting way, to build Laos into a peaceful, independent, neutral, democratic, unified and prosperous country in order to contribute positively to the consolidation of peace in Indochina and in Southeast Asia, on the basis of the Geneva Accords of 1962 and of the present realities in Laos, the party of the Government of Vientiane and the party of...

    • Part C. Cambodia
      • Second Supplemental Appropriation Act, 1973
        (pp. 883-883)

        Sec. 307. None of the funds herein appropriated under this Act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam or off the shores of Cambodia, Laos, North Vietnam and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose.

        Approved July 1, 1973....

      • Presidential Letter Concerning End to American Bombing in Cambodia THE WHITE HOUSE TEXT OF A LETTER FROM THE PRESIDENT TO SPEAKER CARL ALBERT AND SENATOR MIKE MANSFIELD
        (pp. 883-884)

        By legislative action the Congress has required an end to American bombing in Cambodia on August 15th. The wording of the Cambodia rider is unmistakable; its intent is clear. The Congress has expressed its will in the form of law and the Administration will obey that law.

        I cannot do so, however, without stating my grave personal reservations concerning the dangerous potential consequences of this measure. I would be remiss in my constitutional responsibilities if I did not warn of the hazards that lie in the path chosen by Congress.

        Since entering office in January of 1969, I have worked...

  11. VII. Documentary Appendix 2:: Some Principal Decisions by United States Courts and Legislative Action by the United States Congress on Indochina-related Issues
    • Part A. Judicial Appendix
      • Holtzman v. Schlesinger
        (pp. 887-899)

        Plaintiffs seek a determination that the President of the United States andthe military personnel under his direction and control may not engage in intensive combat operations in Cambodia and elsewhere in Indochina in the absence of Congressional authorization required under Article I, § 8, Clause 11 of the Constitution. The case is before the court on plaintiffs’ motion for summary judgment for lack of genuine issues of material fact. Additionally, plaintiffs seek declaratory and/or injunctive relief.

        Plaintiffs have also moved to add as plaintiff another Air Force officer on active duty, Captain Donald Dawson, and to stay the defendants from...

      • Holtzman v. Schlesinger
        (pp. 900-911)

        This is an appeal from a judgment of the United States District Court, Eastern District of New York, Hon. Orrin G. Judd, District Judge, dated July 25, 1973, 361 F. Snpp. 553, granting plaintiffs’ motion for summary judgment and providing both declaratory and injunctive relief. The judgment declared that "there is no existing Congressional authority to order military forces into combat in Cambodia or to release bombs over Cambodia, and that military activities in Cambodia by American armed forces are unauthorized and unlawful ..” The order further enjoined and restrained the named defendants and their officers, agents, servants, employees and...

      • Mottola v. Nixon
        (pp. 912-927)

        This suit is brought by four plaintiffs, three of them being members of the United States Military Reserves and one being a registrant eligible for draft under the Selective Service Act, against the President of the United States and his Secretary of Defense to obtain a judgment (1) enjoining defendants from ordering United States military personnel to conduct military operations in Cambodia, and (2) declaring that these four plaintiffs have the right to refuse to participate in what they claim to be an illegal, unconstitutional war.

        The case is now before the court on plaintiffs’ motion for a preliminary injunction...

      • Orlando v. Laird
        (pp. 928-932)

        Shortly after receiving orders to report for transfer to Vietnam, Pfc. Malcolm A. Berk and Sp. E5 Salvatore Orlando, enlistees in the United States Army, commenced separate actions in June, 1970, seeking to enjoin the Secretary of Defense, the Secretary of the Army and the commanding officers, who signed their deployment orders, from enforcing them. The plaintiffs-appellants contended that these executive officers exceeded their constitutional authority by ordering them to participate in a war not properly authorized by Congress.

        In Orlando's case the district court held in abeyance his motion for a preliminary injunction pending disposition in this court of...

      • Commonwealth of Massachusetts v. Laird, 451 Federal Reporter 2d Series 26 (1971)
        (pp. 933-939)

        The question sought to be raised in this action is whether the United States involvement in Vietnam is unconstitutional, a war not having been declared or ratified by the Congress. Plaintiffs seek a declaration of unconstitutionality and an injunction against the Secretary of Defense barring further orders to duty in Southeast Asia of Massachusetts inhabitants if within ninety days of a decree the Congress has not declared war or otherwise authorized United States participation.

        The individual plaintiffs are residents of Massachusetts and members of the United States forces who are either serving in Southeast Asia or are subject to such...

      • Commonwealth of Massachusetts v. Laird, 400 U.S. Reports 886 (1970)
        (pp. 940-954)

        No. 42, Orig. Massachusettsv.LAird, Secretary of Defense. Motion of Constitutional Lawyers’ Committee on Undeclared War for leave to file supplemental brief asamicus curiaegranted. Motion of John M. Wells et al. for leave to file a brief asamici curiae,to participate in oral argument, or alternative motion to be named as parties plaintiff, denied. Motion for leave to file bill of complaint denied. Mr. Justice Harlan and Mr. Justice Stewart dissent. They would set the latter motion for argument on questions of standing and justiciability.

        Mr. Justice Douglas, dissenting.

        This motion was filed by the Commonwealth...

    • Part B. Legislative Action
      • Special Foreign Assistance Act of 1971
        (pp. 957-957)

        Sec. 7. (a) In line with the expressed intention of the President of the United States, none of the funds authorized or appropriated pursuant to this or any other Act may be used to finance the introduction of United States ground combat troops into Cambodia, or to provide United States advisers to or for Cambodian military forces in Cambodia.

        (b) Military and economic assistance provided by the United States to Cambodia and authorized or appropriated pursuant to this or any other Act shall not be construed as a commitment by the United States to Cambodia for its defense.

        Sec. 8....

    • The War Powers Resolution
      (pp. 958-972)

      I hereby return without my approval House Joint Resolution 542—the War Powers Resolution. While I am in accord with the desire of the Congress to assert its proper role in the conduct of our foreign affairs, the restrictions which this resolution would impose upon the authority of the President are both unconstitutional and dangerous to the best interests of our Nation.

      The proper roles of the Congress and the Executive in the conduct of foreign affairs have been debated since the founding of our country. Only recently, however, has there been a serious challenge to the wisdom of the...

  12. VIII. Special Supplement:: War Ends in Indochina
    • Editorial Note
      (pp. 975-976)

      In the Spring of 1975 all combat activities in Indochina came to an end. The negotiated peace has held up in Laos, although control over the apparatus of government has been gradually shifting to the Pathet Lao, especially after the fall of South Vietnam. In Cambodia peace was restored by the military victory of the Khymer Rouge, culminating in surrender by the Phom Phenh government headed by Premier Long Boret on April 16, 1975.

      In South Vietnam, a series of dramatic military reversals by the Saigon government led to the resignation of President Nguyen Van Thieu and his replacement by...

    • U.S. Protests North Viet-Nam’s Violations of Peace Accords
      (pp. 977-978)

      The Department of State of the United States of America presents its compliments to [recipient of this note] and has the honor to refer to the Agreement on Ending the War and Restoring Peace in Viet-Nam signed at Paris January 27, 1973, and to the Act of the International Conference on Viet-Nam signed at Paris March 2, 1973.

      When the Agreement was concluded nearly two years ago, our hope was that it would provide a framework under which the Vietnamese people could make their own political choices and resolve their own problems in an atmosphere of peace. Unfortunately this hope,...

    • Department Discusses Goal of Military Assistance to Viet-Nam and Cambodia
      (pp. 979-982)
      Philip C. Habib

      I welcome the opportunity to appear before you today. The House Foreign Affairs Committee has been a thoughtful and constructive participant in the evolution of U.S. policy toward East Asia, and it is appropriate that early consideration of the new and difficult situations in Viet-Nam and Cambodia should take place here. In the interim since this hearing was originally scheduled, I visited Indochina briefly, accompanying a congressional delegation. I found the experience illuminating, as I believe did your colleagues, and I will draw on my observations there in my testimony today. My opening remarks will be relatively brief so that...

    • POLICY IN SEVEN POINTS
      (pp. 983-987)

      “Policy in Seven Points Promulgated and Applied by Provisional Revolutionary Government of South Vietnam,” text of statement, April 2, 1975.*

      1. Policy with regard to efforts of the entire population to unite to block forced enrollment and forced displacing and regrouping of the population, the sabotaging of the Paris accord and the continuation of the neocolonialist war undertaken by the United States and the administration of Saigon.

      A. All Vietnamesehave the duty and the honor of uniting to block by their struggle forced displacement and regrouping of the population. They are determined to protect the young and to prevent the...

    • U.S. Calls on North Viet-Nam To End Military Offensive
      (pp. 988-989)

      The Department of State of the United States of America presents its compliments to [the Ministry of Foreign Affairs/Ministry of External Affairs of the Union of Soviet Socialist Republics, People’s Republic of China, Great Britain, France, Hungary, Poland, Indonesia, Iran, and Secretary General of the U.N. Kurt Waldheim] and has the honor to refer to the Agreement on Ending the War and Restoring Peace in Viet-Nam signed at Paris January 27, 1973; to the Act of the International Conference on Viet-Nam signed at Paris March 2, 1973; and to the Department’s Diplomatic Note of January 11, 1975, on the situation...

    • President Ford’s News Conference at San Diego April 3
      (pp. 990-990)

      Q. Mr. President, how and why did the United States miscalculate the intentions of the will of the South Vietnamese to resist?

      President Ford:I don’t believe that we miscalculated the will of the South Vietnamese to carry on their fight for their own freedom.

      There were several situations that developed that I think got beyond the control of the Vietnamese people. The unilateral military decision to withdraw created a chaotic situation in Viet-Nam that appears to have brought about tremendous disorganization.

      I believe that the will of the South Vietnamese people to fight for their freedom is best evidenced...

    • U.S. Foreign Policy: Finding Strength Through Adversity
      (pp. 991-997)

      I am here to sound a note of hope about the future of our foreign policy despite the fact that we are now going through a period of adversity.

      A nation facing setbacks can submerge itself in acrimony, looking for scapegoats rather than lessons. It can ignore or gloss over its difficulties and fatuously proceed as if nothing serious had happened.

      Or it can examine its situation dispassionately, draw appropriate conclusions, and chart its future with realism and hope.

      President Ford has chosen this latter course. A week ago he called upon Congress and the American people to turn this...

    • NGUYEN VAN THIEU’S RESIGNATION
      (pp. 998-1000)

      I argued with the Americans. I told them. “You are selling out South Vietnam to the Communists.”But the American officials said, "We demand you sign this agreement.”

      I rejected that plan. I said we would not go along with it. I do not go along with any agreement with the Communists in any form whatsoever. The North Vietnamese will not agree to our Constitution, our laws, in reaching a solution on what is to be done here in South Vietnam.

      This has been shown. Russians, Chinese, Americans, even Kissinger, have not been able to work it out.

      If only the...

    • INAUGURAL ADDRESS OF DUONG VAN MINH
      (pp. 1001-1003)

      You must have realized that the situation, militarily and in all respects is very critical. We have seen for a long time now that the use of force is not a good solution.

      For many years, we have talked among ourselves, and we have reached the conclusion to seek mutual understanding among the people. We intend no revenge on anyone, and there is no reason why we cannot have reconciliation among brothers in the same house.

      All the tragic things we have heard about, occurring minute by minute, second by second, in our country, we have been paying for with...

    • President Ford’s Statement on Vietnam, April 29, 1975
      (pp. 1004-1004)

      During the past week, I had ordered the reduction of American personnel in the United States Mission in Saigon to levels that could be quickly evacuated during emergency, while enabling that mission to continue to fulfill its duties.

      During the day on Monday, Washington time, the airport at Saigon came under persistent rocket as well as artillery fire and was effectively closed. The military situation in the area deteriorated rapidly.

      I therefore ordered the evacuation of all American personnel remaining in South Vietnam.

      The evacuation has been completed. I commend the personnel of the armed forces who accomplished it, as...

    • TEXTS OF PRESIDENT NIXON’S LETTERS
      (pp. 1005-1009)

      I was pleased to learn from General Haig that you held useful and constructive discussions with him in Saigon in preparation for Dr. Kissinger’s forthcoming meeting with North Vietnam’s negotiators in Paris.

      After studying your letter of November 11 with great care I have concluded that we have made substantial progress towards reaching a common understanding on many of the important issues before us. You can be sure that we will pursue the proposed changes in the draft agreement that General Haig discussed with you with the utmost firmness and that, as these discussions proceed, we shall keep you fully...

    • President Ford’s Proclamation specifying end of the “Vietnam Era” for purposes of qualifying for veterans benefits, May 7, 1975.
      (pp. 1010-1010)

      The Congress has provided that entitlement to certain veterans benefits be limited to persons serving in the armed forces during the period, beginning August 5, 1964, referred to as the Vietnam era. The President is authorized to determine the last day on which a person must have entered the active military, naval, or air service of the United States in order for such service to qualify as service during that period.

      The signing of the cease-fire agreements and implementing protocols on January 27, 1973, between the United States of America and the Republic of Vietnam, on the one hand, and...

    • Vietnam: The Final Reckoning
      (pp. 1011-1018)
      Robert W. Tucker

      At last, the final reckoning in Vietnam is at hand. Barring some unforeseen and unexpected reversal, the last act in what has seemed a never-ending drama has begun. How should we behave in the concluding phase of a conflict whose outcome we have for so long sought to influence? How should we act toward those we chose to support and whose destiny we presumed to guide? However one answers these questions, their importance is apparent. For what we ultimately learn, if anything, from this our first defeat in war will depend in large measure upon our collective memory of Vietnam....

    • The Sulking Giant
      (pp. 1019-1020)
      Stanley Hoffmann

      At the time of the 1973 “peace” agreements, commentators liked to discuss the “lessons of Vietnam” Today, when one reads many of the statements provoked by the latest, if not the last, inevitable act of the tragedy, and especially the President’s remarks, one cannot help feeling that those who had the most to learn have been taught nothing at all They still believe that all it would have taken for “our side” to win was more American will, guts, power Had we kept our “commitment,” the good guys would have prevailed. And so, once more, self-denunciation substitutes for self-criticism, and...

    • VIETNAM: THE FINAL DECEPTIONS
      (pp. 1021-1023)
      RICHARD A. FALK

      After fifteen years of continuous American involvement in the war for control of Southern Vietnam, one’s first impulse is to breathe a sigh of relief that this ugliest chapter in American history is at last at an end. There is a further impulse to join the Administration in its plea that we forgo recriminations by leaving the task of assessing our experience in Vietnam to historians and, instead, marshal the energies of America to meet the mounting challenges both at home and abroad that threaten soon to engulf this nation in economic, political and ecological woes.

      And yet it seems...

  13. Civil War Panel
    (pp. 1024-1024)
  14. Contributors
    (pp. 1025-1026)
  15. Permissions
    (pp. 1027-1030)
  16. Index
    (pp. 1031-1051)