Chapter 8 - General War
Vietnam War
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Introduction to the Vietnam War - read this for the
history
What are other conflicts with roots in colonial
empires?
What would winning have meant?
Vietnam is now communist - does that matter?
Why don't we worry about communists any more?
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Key points
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Once the dominos were safe, Vietnam was only a proxy
for the US/Communist Block conflict
 The same conflicts played out in the mideast
Johnson and Nixon lied about the conduct of the war
 How did this change the relationship between the
Congress and the President?
Vietnam was the first modern media war
 Lying to the media became dangerous
 How have we managed the media in the Iraq wars?
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Pentagon Papers
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What were the Pentagon Papers?
What was their political significance?
They are discussed more fully in Chapter 37
Their publication and the attempts to stop it were
a major national drama
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The Legality of United States
Participation in the Defense of Viet-Nam
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What is SEATO?
What did we promise to the signers of SEATO?
At ratification, did this include long term on the ground
military support?
What changed after ratification?
 Who should judge this change, the president or
congress?
 What is the argument that an attack on Vietnam was a
threat to the US?
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Was the SEATO Treaty Valid?
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Who signed the treaty for Vietnam?
Is Vietnam being attacked by a foreign country?
How does North Vietnam characterize the war?
Does this sort of war trigger a mutual defense
treaty?
Does the UN intervene is this sort of war?
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The Tokin Gulf Resolution
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How was the Tokin Gulf incident like WMDs in the Iraq
war?
Did it contemplate war?
 Mr. Cooper: Then, looking ahead, if the President
decided that it was necessary to use such force as
could lead into war, we will give the authority by this
resolution?
 Mr. Fulbright: That is the way I would interpret it. If a
situation later developed in which we thought the
approval should be withdrawn it could be withdrawn
by concurrent resolution.
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Legal Status of the Resolution?
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Is the Tokin Gulf Resolution a declaration of war?
 Is it anything at all, legally?
 If not, what does that tell us about presidential
power?
Why didn't it matter when Congress repealed the
Tokin Gulf Amendment?
 What did Congress keep doing?
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Why isn't a Declaration of War Necessary
for the Vietnam War?
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It may be suggested that a declaration of war is the only
available constitutional process by which congressional
support can be made effective for the use of United
States armed forces in combat abroad. But the
Constitution does not insist on any rigid formalism. It
gives Congress a choice of ways in which to exercise its
powers. In the case of Viet-Nam the Congress has
supported the determination of the President by the
Senate’s approval of the SEATO treaty, the adoption of
the joint resolution of August 10, 1964, and the enactment
of the necessary authorizations and appropriations . . . .
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Lincoln on Expanding The Right to Repel
Attacks
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Allow the President to invade a neighboring
nation, whenever he shall deem it necessary to
repel an invasion and you allow him to do so,
whenever he may choose to say he deems it
necessary for such purpose, and you allow him to
make war at pleasure. Study to see if you can fix
any limit to his power in this respect, after you
have given him so much as you propose. [2
Abraham Lincoln, The Writings of Abraham
Lincoln 51 (Arthur Brooks Lapsley ed., 1906).]
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Authorization of Force against Terrorism
after 9/11
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use all necessary and appropriate force against those
nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored
such organizations or persons, in order to prevent any
future acts of international terrorism against the United
States by such nations, organizations, or persons. [Pub.
L. No. 107-40, §2(a), 115 Stat. 224 (2001).]
Is this as broad as the Tonkin Gulf Resolution?
Does it authorize war?
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Orlando v. Laird United States Court of Appeals,
443 F.2d 1039, cert. denied, 404 U.S. 869 (1971)
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Who are plaintiffs?
What is their claim?
Why do they have standing when other citizens do not?
What is the ‘‘mutual participation’’ standard for
prosecution of the war?
Why is resolving this a political question?
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What is plaintiff's theory on why Congress
was not free to reject the war?
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This court cannot be unmindful of what every schoolboy knows:
that in voting to appropriate money or to draft men a Congressman
is not necessarily approving of the continuation of a war no matter
how specifically the appropriation or draft act refers to that war. A
Congressman wholly opposed to the war’s commencement and
continuation might vote for the military appropriations and for the
draft measures because he was unwilling to abandon without
support men already fighting. An honorable, decent,
compassionate act of aiding those already in peril is no proof of
consent to the actions that placed and continued them in that
dangerous posture. We should not construe votes cast in pity and
piety as though they were votes freely given to express consent.
(Mitchell v. Laird)
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Challenges Based on International Law
United States v. Sisson, 294 F. Supp. 515,
517 (D. Mass. 1968)
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...the court noted that ‘‘[f]or argument’s sake one
may assume that a conscript has a standing to
object to induction in a war declared contrary to a
binding international obligation.’’ But the court
refused to rule on a charge that U.S. operations in
Vietnam violated such an obligation, calling the
case political and nonjusticiable on grounds that
the court (especially a court of the state accused
of the violation) was ‘‘incapable of eliciting the
facts during a war.’’
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Committee of U.S. Citizens Living in Nicaragua
v. Reagan, 859 F.2d 929, 941 (D.C. Cir. 1988)
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...the court indicated that if Congress adopted a foreign policy that
violated a peremptory norm of international law, ‘‘that policy might
well be subject to challenge in domestic court.’’ The court
mentioned as examples of such norms the prohibitions on slavery,
torture, summary execution, and genocide.
And in Nicaragua v. United States, 1986 I.C.J. 14, 100 [para. 190],
the World Court declared that ‘‘the prohibition of the use of force . .
. constitutes a conspicuous example of a rule in international law
having the character of jus cojens.’’
Do you think these rulings make it more likely that a domestic
court today would adjudicate a claim of unprovoked U.S.
aggression?
 Where does Sosa fit in?
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Laos
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Congress passed this amendment to the Department of Defense
Appropriation Act, 1970:
 ‘‘In line with the expressed intention of the President of the
United States, none of the funds appropriated by this Act shall
be used to finance the introduction of American ground combat
troops into Laos or Thailand.’’
In February 1971, President Nixon, observing the strict language of
the amendment, approved the invasion of northern Laos by a
30,000-troop South Vietnamese force supported by U.S.
helicopters and bombers. Viewed as a major test of the
Vietnamization program, this attempt to cut off troops and materiel
from the Ho Chi Minh Trail ended in failure.
Does the war in Laos and Cambodia meet the mutual participation
test?
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Area and Use Limitations.
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May Congress properly approve the induction of troops
and the purchase of military supplies and then prohibit
the President’s use of those forces in certain areas?
Congress has occasionally purported to do so—for
example, in the Selective Service Act of 1940, Pub. L. No.
76-783, 54 Stat. 885 (1940), which prohibited the
assignment of U.S. conscriptees to duty outside the
Western Hemisphere, except in U.S. possessions.
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Armed Forces Appropriations Authorization Act
of 1971 (Mansfield Amendment)
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(a) It is hereby declared to be the policy of the United
States to terminate at the earliest possible date all
military operations of the United States in Indochina, and
to provide for the prompt and orderly withdrawal of all
United States military forces at a date certain, subject to
the release of all American prisoners of war held by the
government of North Vietnam and forces allied with such
Government and an accounting for all Americans missing
in held by or known to such Government or such forces .
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Nixon's Signing Statement
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Section 601 expresses a judgment about the
manner in which the American involvement in the
war should be ended. However, it is without
binding force or effect, and it does not reflect my
judgment about the way in which the war should
be brought to a conclusion. My signing of the bill
that contains this section, therefore, will not
change the policies I have pursued and that I will
continue to pursue toward this end. [3 Pub.
Papers 1114 (Nov. 17, 1971).]
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Holtzman v. Schlesinger, 484 F.2d 1307
(1973)?
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What did the district court order that was being
appealed?
Sec. 108. Notwithstanding any other provision of law, on
or after August 15, 1973, no funds herein or heretofore
appropriated may be obligated or expended to finance
directly or indirectly combat activities by United States
military forces in or over or from off the shores of North
Vietnam, South Vietnam, Laos or Cambodia.
How does this show congressional support for the
bombing at issue in this case? (Was it before 15 Aug?)
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