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sending of American troops overseas to engage in military activities without Congressional approval, and section 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 8 2304), which prohibits the providing of military aid to governments engaged in consistent pattern of gross violations of internationally recognized human rights. Additionally, the plaintiffs sought to enforce the obligations of the U.S. Government and the defendants "under international law to abide by the laws of war and to promote the observance of universally recognized standards of human rights." (Id., 1 35]

The Members sued in their representative capacities and as individual citizens, claiming standing because: (1) the defendants' actions violated the named constitutional and statutory provisions, and so threatened the “institutional interest of Congress and each member thereof in the exercise of the power explicitly allocated to ... Congress ... , thereby diminishing the powers of each Senator and Congressman to vote and participate in the determination of matters which the Constitution entrusts to the Congress." (Id., 1 5(c)); (2) they represented the American people who had been made "accomplices to terror" in violation of international law (Id., 1 6); and (3) they represented the American people who had been injured by unilateral actions not in compliance with "political, legal, and constitutional process." [Id., 1 7]

The complaint recited four causes of action, the first two of which alleged violations of the Constitution and the War Powers Resolution in that the defendants had “introduced at least 56 members of the United States Armed Forces in aid of the Salvadorian junta and its armed forces(Id., | 14) in the country's civil war. According to the plaintiffs, this action violated the War Powers Clause of the Constitution in that no declaration of war had been made, and violated the War Powers Resolution in that the U.S. armed forces had:

(a) been introduced by defendants into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, although there has been no declaration of war by the Congress, there is no specific statutory authorization for the introduction of such forces, and there is no national emergency created by an attack upon the United States, its territories or possessions, or its armed forces;

(b) been permitted to remain in El Salvador despite the failure of the defendant Reagan to comply with the specific reporting requirements set forth in the foregoing Resolution; and

(c) been permitted to remain in El Salvador beyond the period of 60 days when such forces are, in the absence of a declaration of war, required under any circumstances to be

removed. (Id., | 23] The third cause of action recited numerous violations of human rights by the junta and its armed forces and security forces, and alleged that the provision of U.S. military equipment and support to the El Salvador government made "the United States and defendants herein willing and inevitable accomplices to the commission of these crimes and violate ... provisions of international law.(Id., 1 38]

The final cause of action alleged violations of the Foreign Assistance Act of 1961, supra, in particular section 502B. Because of the junta's enumerated violations of internationally recognized human rights, the complaint asserted that section 502B prohibited security assistance to El Salvador. Exceptions to this prohibition were not warranted in this

case,
the

complaint stated, because “[e]xtraordinary circumstances do not exist which necessitate a continuation of security assistance to El Salvador; nor on all the facts is it in the national interest of the United States to provide such assistance." [Id., | 45]

On June 18, 1981, sixteen U.S. Senators and thirteen Congressmen 2 filed a motion under Rule 24 of the Federal Rules of Civil Procedure to intervene in the case as party defendants. In a memorandum accompanying the motion, the prospective intervenors argued that their motion should be granted because the case raised "vital issues implicating their right to exercise their Constitutional and legislative prerogatives according to the Constitution, traditional Congressional procedures and political custom.” [Memorandum of Points and Authorities in Support of Intervening Defendants' Motion for Leave to Intervene, June 18, 1981, at 2] The Members asserted that they sought intervention to protect, inter alia, their "legislative discretion on political questions without judicial interference initiated by colleagues who have failed to gain consensus or enactment of their own policy views.” [Id.]

The prospective intervenors contended that the district court was an inappropriate forum in which to debate foreign policy, and claimed that the plaintiffs had and would have opportunities to accomplish the result they were seeking in court through the legislative process. If the court was willing to consider the case, however, the Members maintained that they were entitled to intervention because: (1) their motion was timely; (2) they had a stake in protecting their constitutional and legislative prerogatives and thus had an interest in the subject matter of the action; (3) their ability to protect their interests would be impaired if the case was disposed of in a manner favorable to the plaintiffs, since that “would not only nullify completed legislative action in the Senate and House on aid to El Salvador, but would also operate to remove legislative discretion from consideration of the pending bills” on the subject [Id. at 12); and (4) they would not be adequately represented by the Executive branch defendants who had different interests than those of the prospective Congressional intervenors.

On July 2, 1981, the defendants filed a memorandum in opposition to the motion for leave to intervene, arguing that the "interest which the proposed intervenors invoke, namely, asserting that the political process is the judicially recognized vehicle for the resolution of plaintiffs' claims, is . . . identical to that which the named defendants will represent." [Defendants' Points and Authorities in Opposition To Motion for Leave to Intervene, July 2, 1981, at 2] ACcording to the memorandum, the arguments which the proposed intervenors sought to advance were in fact "duplicative" of those which would be put forward by the defendants.

2 Those seeking to intervene as defendants were Senators Roger Jepsen, Jesse Helms, Paul Laxalt, Strom Thurmond, Robert Dole, James McClure, John Tower, Steven Symms, S. I. Havakawa, Jeremiah Denton, Barry Goldwater, Gordon Humphrey, Orrin Hatch, Paula Hawkins, Don Nickles, and Dan Quayle, and Representatives Robert Dornan, Richard Cheney, George Hansen, Eldon Rudd, Bob Livingston, Philip Crane, Larry McDonald, Daniel Crane, Jim Jeffries, John Rousselot, Bob Stump, Daniel Lungren, and Jack Fields.

On July 14, 1981, the plaintiffs also filed a memorandum in opposition to the motion to intervene. Characterizing the lawsuit solely as one to enforce already enacted laws limiting the President's power to declare war or to commit American forces to military activities abroad, the plaintiffs asserted that there were no interests of the potential intervenors which could be adversely affected by the court's decision without their participation. The plaintiffs elaborated:

In light of what is the real subject matter of this lawsuit it is difficult to understand applicant-intervenors' claim that their interests as Congressmen will be adversely affected by this Court's enforcement of already enacted laws. Applicant-intervenors' primary assertion is that plaintiffs are requesting this Court to intervene in an on-going policy dispute within Congress and that such intervention will impugn applicant-intervenors' legislative discretion on political questions.* There is in fact a legislative debate now underway in Congress. Some persons associated with applicant-intervenors would, for all practical purposes, like to repeal the War Powers Act and other legislation. The theory of plaintiffs is that legislation on the books is adequate if enforced. What this litigation is about is enforcement of existing law, a matter wholly and entirely unrelated to the debate about changing the law.

*Applicant-intervenors state that their participation is necessary to protect “their legislative discretion on political questions without judicial interference initiated by, colleagues who have failed to gain consensus on endorsement of their own views.". Memorandum of Points and Authorities in Support of Intervening Defendants' Motion for Leave to Intervene (hereafter, Motion to Intervene) at 1-2. [Plaintiffs' Memorandum of Law in Opposition To Appli

cant-Intervenors' Motion To Intervene, July 14, 1981, at 3] In sum, the plaintiffs argued that intervention should be denied because the intervenors' interests were either "irrelevant" to the suit or would be adequately represented by the defendants. Further, they contended, the inclusion of the intervenors would "disserve the interests of adversarial clarity and judicial economy” and “cloud the legal issues involved” by transforming "a clear legal and constitutional controversy between Congress and the Executive into an irrelevant intra-branch policy confrontation." [Id. at 12]

On July 21, 1981, the prospective intervenors filed a response to the oppositions to their motion to intervene. With respect to the plaintiffs' contentions, the prospective intervenors argued that their participation was required regardless of the fact that the suit involved existing laws:

Logic dictates that the terms and provisions of a statute, as well as Congressional activity which relates to it and reflects legislative attitude or understanding of its terms, are material when violation of the statute is claimed as it is

here. Concomitantly, sound judicial practice requires an
inquiry into whether the terms of an allegedly violated
statute apply prior to determining that it has been violat-
ed. The movants' attempt to "inject into this case pending
legislation" against which plaintiffs rail is an effort on In-
tervenors' part to provide this Court with a clearer under-
standing of the background to and nature of plaintiffs' al-
legations and of the role current legislation plays on the
construction and implementation of the statutes which
plaintiffs allege are violated. [Applicant-Intervenors Re-
sponse to Oppositions For Leave To Intervene, July 21,

1981 at 5] With respect to the defendants' assertions, the prospective intervenors reiterated that the Executive defendants represented a separate branch of government the interests of which diverged from their own. They noted:

The rights of legislators such as the Intervenors are not
derivative simply because they coincide with the Execu-
tive's in this instance. Rather, it seems clear that members
of the Legislative branch directly concerned in effectuating
foreign policy have an "interest” in a legal controversy
which concerns it and should be permitted to appear as
parties and urge the construction of the statutes in ques-

tion that they feel secure their interests. (Id. at 11] On July 31, 1981, the defendants filed a motion to dismiss the complaint on the grounds that the court lacked subject matter jurisdiction because the complaint presented a non-justiciable political question and the plaintiffs lacked standing. The defendants also argued that "equitable considerations" demonstrated that the action should be dismissed. Finally, they maintained, the plaintiffs had failed to establish any private right of action entitling them to the relief they sought.

Turning first to the issue of subject matter jurisdiction, the de fendants argued that the case presented a non-justiciable political question because “the issue at hand bears directly upon the President's conduct of foreign relations and his actions as Commanderin-Chief of United States' armed forces.” [Points and Authorities in Support of Defendants' Motion To Dismiss, July 31, 1981, at 13-14 (footnote omitted)] Terming the relief requested by the plaintiffs as “foreign affairs by injunction” [Id. at 15), the defendants asserted that the courts have traditionally declined to entertain litigation in which they are asked to "arbitrate a dispute among coequal branches of government as to the exercise and allocation of constitutional power in the area of our foreign relations.” [Id.]

The defendants also argued that the determinations the court would be required to make to resolve the controversy were beyond the expertise of the judiciary:

Plaintiffs are in effect requesting that this Court deter-
mine for the purpose of the War Powers Resolution that
United States forces are involved in hostilities in El Salva-
dor, and for the purpose of the War Powers Clause, that
such involvement constitutes the making of war in the

constitutional sense. To resolve this controversy, therefore, the Court would be required to establish judicially manageable standards, which, if it could even be done, could "create a rigid matrix that would unnecessarily restrict the executive some time in the future when the powers denied today may be essential to the well-being of the United States” tomorrow. Atlee (v. Laird], 347 F. Supp. at 707. Furthermore, resolution on the merits would necessarily involve "a detailed examination of the political realities of that geographical area with special emphasis on determining the risks to the territorial sovereignty of our allies there, and assuming the loss of these allies, the risks to the territorial integrity of this country." (Id.] A similar examination would have to be made to determine any risk to the military personnel assigned at each location throughout El Salvador. Since the military situation in El Salvador is in a constant state of change and uncertainty, this could easily lead to a need for repeated successive judicial examinations of the situation in the field based of necessity on rapidly changing information. Such determinations are beyond the expertise of the judiciary. (Id. at 16-17

(footnotes omitted)]

Focusing next on the standing issue, the defendants maintained that the "vague" allegations of the plaintiffs did not establish the requisite "direct and palpable” injury to confer standing. Not only had the plaintiffs not been injured, the defendants claimed, but they in fact had legislative remedies available to resolve the matters they had raised in court:

Conspicuously absent from the Congressmen's pleading is an allegation that a specific congressional vote or opportunity to vote has been nullified by the defendants' conduct. Indeed, they cannot so allege because plaintiffs-Congressmen still have the power to act through the legislative process to remedy the alleged abuses. The War Powers Resolution, which plaintiffs concede implements the War Powers Clause, specifically provides that the Congress may at any time terminate the use of United States armed forces in any situation of actual or imminent involvement in hostilities by passage of a concurrent resolution. 50 U.S.C. $ 1544. Thus, this procedure could be used in any case where Congress believed the President had introduced United States forces into hostilities in violation of the War Powers Clause. Similarly, Section 502B of the Foreign Assistance Act, 22 U.S.C. $ 2304, establishes procedures by which Congress may at any time adopt a joint resolution to terminate security assistance to a country with respect to which a human rights report has been requested by Congress. 22 U.S.C. 8 2304(c). Plaintiffs are free, therefore, to introduce resolutions at any time under either law and to attempt to convince their fellow colleagues that such a course is appropriate. (Id. at 21-22]

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