VIETNAM WAR (Update)

The Vietnam War, more accurately labeled America's Indochina War, claimed 46,400 American lives. During its most active phase, from 1964 to 1973, it cost over $107 billion. American troop strength in the conflict reached a peak of 536,100 in March 1969. Yet the war was never formally declared.

Direct American involvement in Indochina began in 1949–1950 when Congress provided for financial and material assistance in "the general area of China" and for the use of noncombatant military advisers. Using this authority, President harry s. truman began sending aid to the associated states comprising French Indochina. When the korean war heightened America's commitment in the Far East, Congress anticipated the pattern of coming years by approving additional aid. Following the end of France's military involvement in Indochina in 1954, the United States took the initiative in negotiating the Southeast Asia Collective Defense Treaty, which committed each of its adherents to meet "armed attack in the treaty area … in accordance with its constitutional processes." Prior to the treaty's approval by the Senate in 1955, Secretary of State John Foster Dulles interpreted this provision as meaning the President would seek congressional support before launching major military moves, but others hedged on whether such action was constitutionally required. Between 1954 and 1964, the United States provided more than $1 billion in military aid to South Vietnam and by late 1963 the American Military Assistance Advisory Group there had grown to 16,300.

In 1964 the war took on a new constitutional cast. South Vietnam's position having deteriorated, President lyndon b. johnson sought to continue a policy of measured firmness. In May and June he directed the State Department to begin drafting possible congressional resolutions to affirm the American commitment in Vietnam. This approach drew partly on the experience of the 1950s and early 1960s, when the United States response to crises involving the Formosa Straits, the Middle East, Berlin, and Cuba included congressional resolutions of support in 1955, 1957, 1961, and 1962. Although temporarily shelved, the project soon became urgent. On August 2, perhaps provoked by American-supported commando raids along the North Vietnamese coast, North Vietnam torpedo boats attacked an American destroyer on an intelligence mission in the Gulf of Tonkin. Two days later, another attack may have occurred. Johnson reported the attacks to the American people, but refrained from mentioning either the intelligence mission or doubts about whether the second attack had actually occurred. Congressional leaders received a fuller briefing but not a complete account. Giving them a draft resolution, Johnson asked for its prompt passage even as he ordered retaliatory air strikes against North Vietnam.

Following a perfunctory hearing and almost no floor debate, the House of Representatives passed the gulf of tonkin resolution by a vote of 416–0. In the Senate, owing especially to questions raised by Wayne Morse about the events in the Tonkin Gulf and about the problem of unconstitutionally delegating Congress's war powers, the hearing process and floor debate took slightly longer, but the measure won approval by 88 to 2, and Johnson signed it into law on August 10. After stating Congress's support for the President's determination "to take all necessary measures to repel any armed attack against the armed forces of the United States and to prevent further aggression," the resolution declared that peace in Asia was a vital American interest and that "the United States is, therefore, prepared, as the President determines, to take all necessary steps, including use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom."

In February 1965 the United States escalated its air war in Vietnam and soon began sending ground combat troops (as opposed to "advisers"). When voting in 1964, most congressmen had not contemplated this turn of events, yet Senator J. William Fulbright, chairman of the Foreign Relations Committee, had admitted during debate that the resolution could undergird major military action. In 1967, Under Secretary of State (and former Attorney General) Nicholas Katzenbach explained that the Tonkin Gulf Resolution was "as broad an authorization for the use of armed forces … as any declaration of war so-called could be in terms of our internal constitutional process." Significantly, however, its State Department drafters had carefully avoided any language conceding that congressional authorization was a requirement for escalating the American presence in Vietnam. This allowed continuing reliance on the President's own authority, as illustrated in February 1966 when a State Department legal memorandum argued that the President's direct powers under Article II covered the commitment in Vietnam. That being the case, the Southeast Asia Collective Defense Treaty's provision for action in accordance with American "constitutional processes" further authorized the war in Vietnam. But, explained the memorandum, the existence of the Tonkin Gulf Resolution and congressional appropriations for the conflict obviated the need to delineate precise constitutional boundaries.

Despite growing public and congressional criticism of the war, Congress enacted at least twenty-four laws supporting it between 1964 and 1969. Senator Morse's 1966 call for repeal of the Tonkin Gulf Resolution met defeat, as, for example, did antibombing amendments to appropriations bills in 1968. In 1967 the Senate Foreign Relations Committee began to consider a "National Commitments Resolution," after Fulbright, its chairman, switched to an antiwar stance. But the resulting measure, as adopted in June 1969, merely expressed "the sense of the Senate" that the commitment of troops abroad should result only from affirmative and explicit joint action by the President and Congress. Finally, in December 1970, Congress included repeal of the Tonkin Gulf Resolution as a rider to the Foreign Military Sales Act, which President richard m. nixon signed in January 1971.

By this time, Nixon and his backers had accepted the argument of the Johnson administration that the resolution was constitutionally unnecessary—but with a twist. Whatever the constitutional basis for the war under Johnson, as Assistant Attorney General william h. rehnquist explained after the Cambodian "incursion" in April 1970, Nixon inherited a conflict in progress and had "an obligation as commander-in-chief to take what steps he deems necessary to assure the safety of American forces in the field."

Such claims did not prevent senators of both parties and growing numbers of House Democrats from proposing limits on the war. Between late 1969 and mid-1973, ten restrictive measures became law. One barred use of combat troops in Thailand and Laos; another forbade further expenditures for ground operations in Cambodia. Still another, an amendment to a defense procurement act, stated that United States policy was to cease all military operations "at a date certain," but when Nixon signed the act, he denied that the policy declaration had "binding effect." In actuality, prior to the Vietnam cease-fire in January 1973, congressional "doves" were unable to pass iron-clad restrictions.

Finally, after the Vietnam cease-fire, but while air attacks on Cambodia continued, Congress voted that no funds "may be expended to support directly or indirectly combat activities in, over, or from off the shores of Cambodia, or in or over Laos by United States forces." When Nixon vetoed the appropriations bill containing the cutoff and its supporters threatened to add similar language to all appropriations measures, a compromise emerged, signed by Nixon on July 1. The Second Supplemental Appropriations Act for 1973 forbade use of any funds in the act itself for military operations in Indochina and added that "after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose."

Doubtful of congressional action, opponents of the war had already turned to the judiciary in efforts to enjoin Johnson's warmaking and then Nixon's. Here the need for standing proved an initial barrier. At one time or another, federal district courts and courts of appeal held that taxpayers, citizens qua citizens, reservists, draft registrants, inductees, members of Congress, and probably states lacked the required immediate and concrete stake in the controversy. In some later cases, however, the barrier was relaxed, particularly for servicemen under orders to go to Vietnam, and in a few instances, courts finessed the problem of standing by first examining other issues.

Ultimately the political question doctrine proved insuperable. In Orlando v. Laird (1971), for example, lower federal courts held that once a conflict reached the magnitude and duration of the war in Vietnam, the Constitution imposed the duty of some joint action by the President and Congress. This requirement established a manageable test that allowed judicial determination without running up against the political questions doctrine. The courts found, however, that the Tonkin Gulf Resolution, wartime extension of the selective service act, and continuing appropriations satisfied the joint-action requirement. The issue raised by the decision of Congress and the President to use these means for collaboration rather than a declaration of warwas a nonjusticiable political question. In Mitchell v. Laird (1973), which arose after repeal of the Gulf of Tonkin Resolution, a court of appeals went further, declaring that it could "not be unmindful of what every schoolboy knows"—that appropriations and draft extensions did not necessarily indicate congressional approval of the war. Yet the court would not substitute its judgment for the President's regarding the appropriate military means for concluding the conflict.

The closest the federal judiciary came to blocking American involvement in Indochina occurred after the Vietnam cease-fire itself. In Holtzman v. Schlesinger (1973) a member of Congress and three Air Force officers sought to enjoin further bombing of Cambodia. Federal District Judge Orin Judd in New York found that all existing legislative authorization for operations anywhere in Indochina had ceased with the end of the war in Vietnam. Moreover, as Judd interpreted it, the compromise specifying a funding cutoff on August 15 conferred no new authority. Accordingly, on July 25, 1973, he ordered the secretary of defense to stop the bombing, but the United States Court of Appeals for the Second Circuit promptly stayed his order. Lawyers for the plaintiffs next asked thurgood marshall, the circuit's Justice on the Supreme Court, to vacate the stay, and when he declined, they tracked down Justice william o. douglas, then vacationing in Washington State. Douglas issued the necessary order, but at the request of the government, Marshall polled the full Court by telephone and proceeded to reinstitute the stay.

On August 8 the court of appeals reversed Judd, holding that the relation of the continued bombing to implementation of the peace agreement did constitute a political question. In obiter dicta, it opined further that Judd had incorrectly interpreted the compromise on the funding cutoff and had erred in granting standing to Congresswoman Elizabeth Holtzman and the Air Force officers. The court's reliance in Holtzman on the political questions doctrine was consistent with the sweeping recognition of the doctrine in Atlee v. Laird (1972), the only lower court decision involving the constitutionality of the war that the Supreme Court affirmed (although without opinion) rather than sidestep by denying certiorari.

Three years earlier, Congress had begun to consider general war-powers legislation. By 1973 the House had passed a version imposing strict consulting and reporting requirements on the President, whereas the Senate's bill sought to define precisely the circumstances in which the President could use force without congressional authorization. In October 1973 both houses accepted a compromise measure. Its detailed mandatory sections stressed requirements for consultation and reporting and provided that if the President did not receive congressional approval within sixty days of committing forces to hostilities or situations of imminent hostilities, he had to withdraw them. (The President had another thirty days for withdrawal if he certified that the safety of the troops required the additional period.) Claiming the War Powers Resolution infringed on the constitutional authority of the President, Nixon vetoed it, but Congress overrode the veto. A clear legacy of the Indochina War, the law triggered ongoing debate in subsequent years regarding its constitutionality, wisdom, and effectiveness.

Throughout the war civil liberties issues arose. Beginning in 1965–1966 growing numbers of opponents publicly demonstrated against American participation and its escalation and mounted focused protests against recruiting, the draft, and even military training. Ensuing criminal prosecutions (which war resisters often invited) included well-publicized and sometimes chaotic conspiracy trials that swept in prominent antiwar figures like pediatrician Benjamin Spock (of the "Boston Five") and social activist Tom Hayden (of the "Chicago Eight"). In addition, federal and some local agencies responded with domestic intelligence operations involving both surveillance and use of agents provocateurs. In part, the prosecutions and intelligence activities reflected the firm belief of both Johnson and Nixon that the domestic protest movement had connections to communism abroad.

In contrast to its largely hands-off approach to issues of external warmaking, the judiciary supported the antiwar position in key cases. Where juries convicted war resisters, appellate courts often proved receptive to first amendment arguments and procedural challenges. In cohen v. california (1971), for example, the United States Supreme Court held that the words "Fuck the Draft" sewn on a jacket fell within the limits of protected expression. In united states v. seeger (1965) and Welsh v. United States (1970) the Court in effect rewrote the Selective Service Act in order to broaden permissible grounds for conscientious objection. Oestereich v. Selective Service Board (1968) and Breen v. Selective Service Board (1970) disallowed use of selective service reclassification as a means of punishing opposition to the draft. But united states v. o ' brien (1968) upheld legislation outlawing draft card destruction. In new york times v. united states (1971), although the Court allowed publication of the so-called Pentagon Papers, a majority of Justices eschewed an absolutist position, revealing instead an openness to some forms of censorship. And in laird v. tatum (1972) an attempt to stop the United States Army's domestic surveillance program failed when the Court found that the plaintiffs had suffered no personal injury.

Overall, the Vietnam War significantly broadened the range of constitutional debate in America. Although hardly an unambiguous example of executive warmaking, the war helped stigmatize further accretions to an "imperial presidency." Although not blocked by the judiciary, it drew judges partway into defining the external warmaking authority. And although far from the only source of domestic unrest and reaction in the 1960s and early 1970s, the conflict triggered a wide enough spectrum of opposition to give renewed respectability to dissent.

Charles A. Lofgren
(1992)

(see also: Congress and Foreign Policy; Congressional War Powers; Executive Power; Executive Prerogative; Foreign Affairs; Presidential War Powers; Senate and Foreign Policy; War, Foreign Affairs, and the Constitution.)

Bibliography

Bannan, John F. and Bannan, Rosemary S. 1974 Law, Morality and Vietnam: The Peace Militants and the Courts. Bloomington: Indiana University Press.

Gibbons, William C. 1986–1989 The U.S. Government and the Vietnam War: Executive and Legislative Roles and Relationships, 3 vols., series in progress. Princeton: Princeton University Press.

Keynes, Edward 1982 Undeclared War: The Twilight Zone of Constitutional Power. Chaps. 5–7. University Park: Pennsylvania State University Press.

Strum, Philippa 1976 The Supreme Court and the Vietnamese War. In Richard A. Falk, ed., The Vietnam War and International Law: The Concluding Phase. Vol. 4, pages 535–572. Princeton, N.J.: Princeton University Press.