|UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ROBERT L. SCHULZ, MILAN PAVLOVIC,
STEPHEN W. OUGHTON and GARY T. LOUGHREY,
- against -
Civil Action No. 99-CV-0845
THE UNITED STATES EXECUTIVE OFFICE OF (FJS) (RMS)
MEMORANDUM OF LAW IN OPPOSITION
Dated: July 7, 1999
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . ii
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . 3
POINT I ACTS OF CONGRESS ARE NOT IMMUNE
POINT II THE "SPEECH AND DEBATE CLAUSE" DOES
POINT III THE PRESIDENT IS NOT IMMUNE
POINT IV THE PRESIDENT IS NOT IMMUNE
POINT V THE COURT HAS PERSONAL JURISDICTION. . . . . . . . 19
POINT VI THIS CASE IS NOT MOOT . . . . . . . . . .. . . . . . . . 20
POINT VII PLAINTIFFS HAVE ECONOMIC STANDING . . . . . . . . 23
POINT VIII PLAINTIFFS HAVE NON-ECONIMIC STANDING. . . . 26
POINT IX PLAINTIFFS QUESTIONS ARE JUSTICIABLE . . . . . . 27
CONCLUSION . . . . . . . . . . . . . . . . . 31
TABLE OF AUTHORITIES
Aetna Life Insurance co. v Haworth, 57 S.Ct. 461, 464 . . . . . . . . . . . . . . .
Article I, Section 8, cl. 10 . . . . . . . . . . .10,13,18,29,31
50 USC Sections 1541-1548 . . . . . . . . . . . . . . . .10,12,13
Plaintiffs respectfully submit this memorandum in opposition to defendants motion to dismiss. In their motion the defendants make the following arguments, which we address below:
STATEMENT OF THE FACTS (Footnote #1)
In this Complaint, shorthand references to "Belgrade" or "Yugoslavia" refer to the Federal Republic of Yugoslavia (Serbia and Montenegro); "Clinton" refer to both the President of the United States personally and his official capacity as the principal officer of the Executive Office of the President, and where appropriate, the reference also includes his official capacity as head of the Cabinet within the Executive Branch and his official powers as Commander in Chief under U.S. Constitution Art. II, sec. 2, cl.1; "KLA" refer to the Kosovo Liberation Army, an ethnic Albanian organization; "Militia" in the original U.S. Constitution refer to "the Militias of the several states," as distinguished from units of the official armed services of the United States, originally the Army, Navy, Marine Corps, and Coast Guard, the Militias being organized by the states subject to federal discipline and training under the Militia Act of 1792 until the federal role for Militias was displaced by an Act of Congress creating the U.S. National Guard in 1916 constitutional reference to "the Militias of the several states" should be construed as reference to either the National Guard since 1916 or actually existing state Militias, but only a few states still have Militias as active duty or reserve military forces; "reservists" refer to both active duty and reserve members of the U.S. National Guard and reserve members of the other U.S. armed forces, such as the Army, Air Force, Navy, Marine Corps, and Coast Guard; etc.
Kosovo, a region of Serbia, historically has been inhabited both by ethnic Albanians and by ethnic Serbs. The region gained a considerable degree of autonomy through the 1970's, and by the late 1980's ethnic Albanians constituted an overwhelming majority of the population in Kosovo. When Slobodan Milosevic came to power in Serbia in the late 1980's, he abolished the autonomous status of the province, and Kosovos ethnic Albanians (the KLA) began taking various violent measures to resist the rule of Serbia. Exhibit A to supporting affidavit. In early 1998, Serbia launched a crackdown in Kosovo against the Kosovo Liberation Army. It has been reported that the conflict in Kosovo is about the state-owned Trepca mining complex, the most valuable real estate in the Balkans, worth more than $5 billion, and that the decision on who will own or have controlling interest in the 22 mines and the many lead, zinc, cadmium, gold and silver processing plants within the Trepca complex, will be made by whoever wins the armed struggle that continues to rage in Kosovo. See Exhibit H to supporting affidavit.
Throughout 1998 and into the beginning of 1999, the United States in partnership with NATO member countries and other allies sought a diplomatic resolution to the internal conflict between the ethnic Albanians in Kosovo and the government of Yugoslavia. It did, however, impose various economic sanctions against Yugoslavia in an effort to force a resolution. In January 1999, diplomatic efforts intensified, and the Kosovo Albanians and representatives of the Serbian government participated in peace negotiations in Rambouillet, France in February 1999. On March 15, 1999, the Kosovo Albanian delegation signed the interim agreement that had been proposed in Rambouillet, but three days later negotiations were suspended because the Serbian delegation refused to accept the interim agreement, which would have allowed NATO forces to occupy all of Yugoslavia, including Serbia, and to take control of buildings, highways and bridges without compensating the government of Yugoslavia. By March 19, 1999, the tempo of the civil war within Yugoslavia had intensified.
On March 21, 1999, Ambassador Richard Holbrooke made a final diplomatic effort to persuade the government of Yugoslavia to accept the interim agreement, but he failed in that mission and departed Belgrade on March 23, 1999, without having achieved any progress towards a diplomatic resolution. That day, March 23, 1999, the Senate passed by a vote of 58 to 41 a concurrent resolution authorizing the President to "conduct military air operations and missile strikes in cooperation with our NATO allies against the Federal Republic of Yugoslavia (Serbia and Montenegro)." S.Con. Res. 21, 106 th Cong. (1999). NOTE: On April 28, 1999, the House of Representatives defeated S. Con. Res. 21.
The next day, March 24, 1999, United States Armed Forces in coalition with NATO allies began a series of air strikes in the Federal Republic of Yugoslavia. That same day, by a vote of 424 to 1, the House of Representatives passed a resolution stating that it "supports the members of the United States Armed Forces who are engaged in military operations against the Federal Republic of Yugoslavia and recognizes their professionalism, dedication, patriotism, and courage." H.R. Res. 130, 106 th Cong. (1999).
Two days later, President Clinton sent identical letters to J. Dennis Hastert, Speaker of the House of Representatives, and to Strom Thurmond, President pro tempore of the Senate. The letter opens: "At approximately 1:30 p.m. eastern standard time, on March 24, 1999, U.S. military forces, at my direction and in coalition with our NATO allies, began a series of air strikes in the Federal Republic of Yugoslavia (FRY) in response to the FRY governments continued campaign of violence and repression against the ethnic Albanian population in Kosovo." The letter goes on to detail the circumstances that led to the decision to begin air strikes in the Federal Republic of Yugoslavia, including alleged atrocities committed by the Milosevic government and the Milosevic governments alleged history of noncompliance with resolutions of the United Nations Security Council and NATO. The letter concludes: "We cannot predict with certainty how long these operations will need to continue . . . Milosevic must stop his offensive, stop the repression and agree to a peace accord based on the framework from Rambouillet. . . I have taken these actions pursuant to my constitutional authority to conduct foreign relations and as Commander in Chief and Chief Executive. In doing so, I have taken into account the views and support expressed by the Congress . . . . I am providing this Report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action."
On April 7, 1999, the President again sent letters to Speaker Hastert and Senator Thurmond reporting on the situation in Kosovo as part of his "efforts to keep the Congress fully informed, consistent with the War Powers Resolution." The letter states that "[w]e will continue to intensify our actions to achieve the objectives I set forth in my report to the Congress of March 26 and to support the international relief efforts being conducted in the region." The letter reemphasizes that it is "not possible to predict how long [the] operations will continue."
On April 28, 1999, the House of Representatives voted on four measures relevant to this action. By a vote of 2 to 427, the House defeated a joint resolution declaring a state of war between the United States and the government of the Federal Republic of Yugoslavia. See H.R.J. Res. 44, 106th Cong. (1999). By a tie vote, 213 to 213, the House rejected the concurrent resolution that had been passed by the Senate on March 23, 1999, authorizing the President to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia. See S.Con. Res. 21, 106 th Cong. (1999). The House also defeated by a vote of 139 to 290 a concurrent resolution that would have directed the President, "pursuant to section 5(c) of the War Powers Resolution, [50 U.S.C. § 1544(c),] to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia." See H.R. Con. Res. 82, 106 th Cong. (1999). Finally, the House passed a bill that prohibits the use of Department of Defense funds for deployment of United States ground forces to the Federal Republic of Yugoslavia without specific congressional authorization. See H.R. 1569, 106 th Cong. (1999). The Senate has taken no action on that bill.
On May 20, 1999, Congress passed an Emergency Supplemental Appropriations Act that, inter alia, provides supplemental emergency appropriations for the conflict in Yugoslavia. The appropriations bill requires the President to transmit to the Congress "a report, in both classified and unclassified form, on current United States participation in Operation Allied Force," defined as "operations of the North Atlantic Treaty Organization (NATO) conducted against the Federal Republic of Yugoslavia (Serbia and Montenegro) during the period beginning on March 24, 1999, and ending on such date as NATO may designate, to resolve the conflict with respect to Kosovo." See 1999 Emergency Supplemental Appropriations Act, Pub. L. No. 106-31, 113 Stat. 57. The Appropriations Act does not contain a statement that it is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution.
On May 25, 1999, the U.S. Senate tabled an amendment to the FY2000 Defense appropriations bill which would have prohibited the President from utilizing any funds appropriated under the FY2000 Defense appropriation bill to support ground troops in Kosovo, absent congressional approval.
On May 27, 1999, it was reported that President Clinton was ready to consider a full-scale land war against Serb forces in Kosovo, sending 90,000 combat troops from America if no peace settlement emerges within the next three weeks. See Exhibit D to supporting Affidavit.
By the end of May the U.S. led NATO forces had a crisis on its hands. As of May 25, 1999, the United States led NATO force had flown over 26,000 sorties over the Federal Republic of Yugoslavia, launched over 8,000 air strikes on more than 1,500 different civilian and military targets in Yugoslavia, exploding approximately 15,000 missiles and bombs, utilizing more than 1,250 airplanes. The United States has supplied most of the airplanes, missiles and bombs that have been utilized in the campaign. As defendant Secretary of Defense William Cohen stated on April 21, 1999, the United States is "certainly engaged in hostilities" in Yugoslavia. NATO admitted to killing 312 people due to bombing mistakes. Serbia put the number at more than 1,000. NATO has killed thousands more quite intentionally. On May 26, 1999 NATOs supreme commander in Europe, General Wesley Clark, said he would be seeking to increase the number of air strikes in Kosovo and expand the range of targets and that the NATO alliance should be prepared for more civilian deaths. He said NATOs air campaign has not reached its peak yet. ["NATO Commander Warns of More Civilian Deaths," London Telegraph, May 28, 2999]. See Exhibit E to supporting Affidavit. Nearly one million people fled Kosovo since the start of the military strikes on March 24, 1999. Most of these people were in refugee camps across the border in Albania and Macedonia. Many of the electric power, water, sewage treatment and communications facilities, as well as factories, homes and office buildings in Belgrade and other major cities in Yugoslavia were in ruins. Notwithstanding all of this misery and destruction, most of the assets of the armed forces of the Federal Republic of Yugoslavia remained in tact. See Exhibit I and J to supporting Affidavit.
On June 2, 1999, Russian mediator Victor Chernomyrdin and Finnish President Martii Ahtisaari and Deputy Secretary of State Talbott developed a proposal containing ten principles upon which a resolution of the crisis could be based, including the introduction of combat troops into Kosovo from England, France, Germany and the United States, as an occupation army.
On June 3, 1999, Chernomyrdin and Ahtisaari traveled to Belgrade. Later that day, President Milosevic and the Serb parliament formally accepted the document, under threat of continued death and destruction caused by the U.S. led military air strikes and under threat of a massive invasion by a U.S. led ground force.
On June 10, 1999, the U.S. led NATO air campaign was suspended and armed forces of the United States and other countries went into Kosovo on the ground. While the bombing has stopped, hostilities and perils remain. See Exhibit J to supporting Affidavit.
ACTS OF CONGRESS ARE NOT IMMUNE
Our constitutional system provides for a strict separation of powers. The legislature does not stand beside the judiciary as a co-interpreter of the fundamental law, particularly when it comes to consideration of restraints on legislative power. "It is, emphatically, the province of the judicial department, to say what the law is." (Marbury v Madison, 1 Cranch [5 US] 137, 176  [Marshall, Ch.J.]). The Courts cannot close their eyes to the Constitution and see only the acts of the Congress. There can be no impenetrable barrier to judicial review of the constitutionality of the acts of Congress.
Buckley v Valeo, 96 S. Ct. 612 stands for the proposition that Congress and the Executive may not collude to evade the Appointments Clause of the Constitution (Article 2, §2, cl. 2). If collusion in minor affairs is prohibited (presidential appointment and Senate approval of "officers"), is collusion in major affairs nevertheless allowed (armed forces of the United States mobilized and sent into combat overseas by Presidential Directives and Executive Orders without approval of Congress)?
In Buckley, the Federal Election Campaign Act of 1971 was challenged on various constitutional grounds. The Court declared that the Federal Elections Commission created by the Act was invalidly constituted in violation of the appointments clause.
Plaintiffs claims against Congress are twofold. First, that the War Powers Resolution 50 U.S.C. § 1541 et. seq., is violative of the War Powers clauses (U.S. Constitution, Art. 1, § 8, clauses 10, 11, 14, 15 and 16), because it delegates to some future President, under any unknown circumstances, the power to introduce the United States armed forces into hostilities (war) against a sovereign nation, which nation offers no threat to the United States, its allies, or to any other nation, for a period of sixty days or more, without a declaration of war by Congress and without specific statutory authorization.
The War Powers Clauses of the United States Constitution provides Congress with the power to "define and punish offenses against the Law of Nations" (U.S. Constitution, Art. 1, § 8, cl.10), and the power to "declare War . . . ." (U.S. Constitution, Art. I, § 8, cl. 11), and the power to "make rules for the government and regulation of the [armed forces of the United States]" (U.S. Constitution, Art. I, § 8, cl. 14), and the power to "provide for the calling forth of the [National Guard and National Guard Reserve] ." (U.S. Constitution, Art. I, § 8, cl. 15), and the power to "provide for governing such part of the [National Guard and National Guard Reserve] ." (U.S. Constitution, Art. 1, § 8, cl. 16). Congress power to declare war works in conjunction with the authority granted to the President under the Constitution to act as "Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." (U.S. Constitution, Art. II, § 2, cl. 1). The Constitution does not further delineate the precise scope of the powers granted to the executive and legislative branches, but clearly the Framers intended to give each of the two branches a role in the conduct of foreign military affairs. Essentially, Congress would declare war and raise and financially maintain armies, while the President would conduct wars.
In 1973, over President Richard Nixons veto, Congress passed the War Powers Resolution, (50 U.S.C. § 1541, et. seq.), in order to "fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations." 50 U.S.C. § 1541(a). The purpose of the resolution was to ensure that the "constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces." 50 U.S.C. § 1541(c).
The War Powers Resolution provides, inter alia, that "[i]n the absence of a declaration of war, in any case in which United States Armed Forces are introduced (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the President shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a written report setting forth the circumstances necessitating the introduction of forces, the constitutional and legislative authority to introduce the forces and the estimated scope and duration of the hostilities or involvement." 50 U.S.C. § 1543(a). (Plaintiffs emphasis). The President also is required to submit periodic reports, at least every six months, for as long as the forces remain engaged in hostilities. 50 U.S.C. § 1543(c).
The War Powers Resolution is, thus, unconstitutional. In violation of said War Powers clauses, the War Powers Resolution of 1973 delegates to some future President, under any unknown circumstances, and without a declaration of war by Congress, and without specific statutory authorization, the power to define and punish "offenses" by a sovereign nation, by introducing the United States armed forces into hostilities (war) against that sovereign nation, even though that sovereign nation offers no threat to the United States, its allies or to any other nation, for a period of sixty days or more.
Within sixty calendar days after the President either submits a report pursuant to Section 1543(a) or is required to have submitted a report, the President must terminate the use of the United States Armed Forces described in Section 1543 unless Congress (1) has declared war or has provided specific authorization for the use of such forces, (2) has extended by law the sixty-day time period, or (3) is physically unable to meet as a result of an armed attack on the United States. 50 U.S.C. § 1544(b). The President may extend the sixty-day period an additional thirty days if he determines and certifies in writing to the Congress that the continued use of forces for the additional time is necessary to safely remove the United States Armed Forces. The War Powers Resolution also sets forth a mechanism so that both houses of Congress are required to give priority consideration to any resolution or bill that would provide the President with the authorization described above. See 50 U.S.C. §§ 1545, 1546, 1546a. NOTE: the act does not indicate what is to happen if the President ignores the sixty-day requirement, as President Clinton has done with respect to his military campaign against Yugoslavia. He continued the "air campaign" well beyond May 25, 1999, and he now has approximately 3,500 U.S. combat soldiers on the ground in Kosovo.
Finally, the War Powers Resolution explicitly provides that authority to introduce forces into hostilities shall not be inferred "from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of [the War Powers Resolution]," or "from any treaty . . . unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of [the War Powers Resolution]." 50 U.S.C. § 1547(a) (emphasis added). NOTE: On May 20, 1999, Congress passed an Emergency Supplemental Appropriations Act that, inter alia, provides supplemental emergency appropriations for the on-going conflict in Yugoslavia. The Appropriations Act does not contain a statement that it is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution.
Plaintiffs second claim against Congress is that, taken together, five official actions of Congress between March 23, 1999 and May 20, 1999, represent an unconstitutional delegation to the Executive of the War Powers reserved to Congress by Article 1, § 8, clauses 10, 11, 14, 15 and 16 of the U.S. Constitution, and a significant and substantial violation of the most fundamental constitutional principle of "separation of power." The five official actions referred to are: 1) Senate Concurrent Resolution 21, authorizing the President to "Conduct military air operations and missile strikes against the Federal Republic of Yugoslavia ." (passed by the Senate on March 23, 1999, but defeated by the House on April 28, 1999); 2) House of Representative Joint Resolution 44, declaring a state of war between the United States and the Federal Republic of Yugoslavia (defeated by the House on April 28, 1999); 3) House of Representatives Concurrent Resolution 82, that would have directed the President " to remove United States armed forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia." (defeated by the House on April 28, 1999); 4) House Resolution 1569, prohibiting the use of Department of Defense funds for deployment of United States ground forces to the Federal Republic of Yugoslavia without specific congressional authorization (passed by the House on April 28, 1999, but the Senate has taken no action on it); 5) Public Law No. 106-31, 113 Stat. 57, provides supplemental emergency appropriations for the conflict in Yugoslavia but does not contain a statement that it is intended to constitute specific statutory authorization within the meaning of the War Powers Resolution (passed by the House and the Senate on May 20, 1999).
Taken together, these official acts of Congress, taken with full knowledge that the Executive had unilaterally engaged the armed forces of the United States in massive, costly and deadly daily military strikes against the Federal Republic of Yugoslavia, mean that Congress colluded with the President in a collective decision to deny plaintiffs and other citizens their constitutional rights, liberties and freedoms. In effect, Congress knew that the armed forces of the United States were engaged in hostilities against the sovereign nation of Yugoslavia, unconstitutionally, and they deliberately chose by their official actions to allow for the collapse of fundamental republican principles and with it the rule of law.
Plaintiffs are entitled to relief in the form of a declaration by this court that, taken together, said acts of Congress are repugnant to said War Powers clauses of the U.S. Constitution and, that the War Powers Resolution of 1973 is unconstitutional, null and void for the same reason.
THE "SPEECH AND DEBATE CLAUSE" DOES
"Legislators generally enjoy absolute immunity from liability for official conduct within the sphere of legitimate legislative authority." Tenny v Brandhove, 341 U.S. 367, 376 (1951).
To begin, petitioners direct this Courts attention to the fact that petitioners seek, first, a declaration that certain official acts of Congress are unconstitutional and that the Executive acted without constitutional or statutory authority in bringing the U.S. to war against Yugoslavia. Since the Legislative has no suable "personhood," members in responsible leadership roles must be named. It is important that the individuals named be able to initiate a remedy -- the Majority Leader and the Speaker.
In Tenny, the Court made clear that while legislators are immune from liability for what they do or say in legislative proceedings, a legislature may not acquire a power by an unwarranted extension of the privilege and immunity from liability for acts done within the sphere of legislative activity. In other words, Tenny does not bar a legislators right to complete freedom in "Speech and Debate"; however, it does cast a shadow upon the enactment of legislation that is outside of the purview of the legislature, such as an enactment repugnant to any constitutional provision. The instant case involves a constitutional challenge to enactments of the Congress. The enactment of laws that are repugnant to the federal Constitution, as with the War Powers Resolution and the five other official acts of Congress referred to in Point I above, do not fall within the "sphere of legitimate legislative activity."
With all due respect, defendants counsel has apparently misconstrued the facts and the law of the instant case. Congress is not immune from claims for declaratory relief if and when it acts to acquire power and to oppress. Mr. Justice Black, concurring in Tenny, wrote "Unfortunately, it is true that legislative assemblies, born to defend the liberty of the people, have at times violated their sacred trusts and become the instruments of oppression." Justice Black also wrote that while "legislators are immune from legal responsibility for intra-legislative statements and activities," Legislatures are not immune to civil process and can be sued on the ground that their acts were "unconstitutional, null and void."
Congress is not immune from the instant challenge -- a challenge which seeks a declaration that certain of its acts are unconstitutional, null and void. This is a proceeding against finished law (a final product), not against legislators involved in the legislative process.
THE PRESIDENT IS NOT IMMUNE
The sovereign immunity of the United States does not bar this action, which seeks no monetary damages, seeks only declaratory and injunctive relief, seeks to vindicate a constitutional right of the plaintiffs, and pleads an appropriate basis for federal jurisdiction, in this case 28 U.S. Code section 1331. See 5 U.S. Code sections 702 and 706(2) for the relevant statutory waivers of sovereign immunity in this context.
Youngstown Sheet & Tube Co. v Sawyer, 72 S.Ct. 863 (1952) stands for the proposition that an action for declaratory and injunctive relief can be brought against the President, even in time of war when the outcome of the case could affect not only the national interest and national defense but could result in the loss of life of members of the United States Armed Forces engaged in hostilities. See also argument under Point IX below.
Valley Forge Christian College v Americans United For Separation of Church and State, Inc., 102 S.Ct. 752 appears to stand for the proposition that the courts power to declare the rights of individuals and to measure the authority of governments is legitimate only in last resort, and as a necessity in determination of real, earnest and vital controversy. Here, plaintiffs do not raise political questions in which plaintiffs can turn to Congress for relief. As shown under Point I above, Congress colluded with the Executive in a collective decision to deny plaintiffs their constitutional rights guaranteed by the War Powers clauses. This legitimate case and controversy is a matter involving vital questions of war and peace, life and death.
The questions presented in this case go to the delineation of the scope of powers granted by the Constitution to the Executive and Legislative branches. The case is justiciable. See also Holtzman v Schleisinger, 94 S.Ct. 8 (case brought under the War Powers clause regarding hostilities in Cambodia during the Vietnam War.
THE PRESIDENT IS NOT IMMUNE
Nixon v Fitzgerald, 457 US 731, stands for the proposition that absolute presidential immunity extends to all acts within the outer perimeter of the Presidents official responsibility. In the instant case, President Clinton acted outside of the outer perimeter of the Presidents official responsibilities.
President Clinton had no official responsibility under the U.S. Constitution and its constitutional laws and treaties to unilaterally define and punish offenses by the leader of the sovereign nation of Yugoslavia against Yugoslavian citizens located in Yugoslavia, no matter how unprovoked and no matter how shocking to the Presidents senses those offenses may have been. In fact, that power is reserved to the peoples representatives in Congress under Art. I, § 8, cl. 10 of the U.S. Constitution.
President Clinton had no official responsibility under the U.S. Constitution and its constitutional laws and treaties to unilaterally declare war against the sovereign nation of Yugoslavia by ordering the armed forces of the U.S. to participate in a 76-day military assault on civilian and military assets on the ground within the borders of Yugoslavia, thereby militarily forcing the government of Yugoslavia to submit to the occupation of its sovereign territory by the armed forces of the United States, and others, under threat of the continued heavy loss of life of Yugoslavias civilian, governmental and military people and under threat of the continued heavy destruction of Yugoslavias civilian, governmental and military infrastructure, including residential, industrial and commercial buildings, and bridges, roads, highways, TV and radio stations, consumer product manufacturing plants, electric power plants, water and sewage treatment plants and so forth. In fact, that power is reserved to the peoples representatives in Congress under Art. I, § 8, cl. 11 of the U.S. Constitution.
President Clinton had no official responsibility under the U.S. Constitution and its constitutional laws and treaties to issue Directives and Executive Orders to unilaterally call reservists to active duty in the military action against Yugoslavia or to declare a combat zone the Federal Republic of Yugoslavia, Albania, the airspace above, and adjacent waters. In fact, that power is reserved to the peoples representatives in Congress under Art. I, § 8, cl. 14 of the U.S. Constitution.
President Clinton had no official responsibility under the U.S. Constitution and its constitutional laws and treaties to unilaterally call forth the militia to execute the North Atlantic Treaty, even if that treaty, as a "Law of the Union," provided for an offensive military attack against a non-threatening sovereign nation located outside the territory of its member nations -- which is not the case. In fact, that power is reserved to the peoples representatives in Congress under Art. I, § 8, cl. 15 of the U.S. Constitution.
President Clinton had no official responsibility under the U.S. Constitution and its constitutional laws and treaties to unilaterally provide for the organization and arming of the armed forces of the United States, including the militia, to support his war against Yugoslavia. Yet, this is what the President has done beginning March 24, 1999 and continuing to this day.
President Clinton had no official responsibility under the U.S. Constitution, and its constitutional laws and treaties, to command the armed forces of the United States, that were not called by Congress, into actual service of the United States. Art. II, § 2, cl. 1 gives the President the power to command the armed forces when called by Congress under Art. I, § 8.
President Clinton had no official responsibility under the U.S. Constitution, and its constitutional laws and treaties, to unilaterally approve the amendments to the North Atlantic Treaty, which were approved by the President on or about April 24 and 25, 1999. In fact, that power is, ultimately, reserved to the U.S. Senate. See Art. II, § 2, cl. 2 of the U.S. Constitution.
THE COURT HAS PERSONAL JURISDICTION
Pro se plaintiffs and their process server were unable to approach the President and the Secretary of Defense at their places of business or their homes. Instead, they handed two copies of the Summons and the Complaint to the individuals named in their affidavit of service at the Executive office of the President at the White House and at the office of the Secretary of Defense at the Pentagon; one copy was served on the defendants in their official capacity and one in their individual capacity. In each case the named individual agreed to accept service of the papers after agreeing that they were employed by the Executive office or the U.S. Defense Department, as the case may be -- presumably as authorized agents of the defendants. Also, a copy of the Summons and Complaint was handed to the named individual at the office of the U.S. Attorney General at the Department of Justice, who agreed to accept the papers after agreeing that he was employed by the U.S. Department of Justice -- as an authorized agent of the Attorney General. At the Pentagon, the process server made a series of calls on the in-house telephone, ending up with the "legal department" where someone said, "Yes, we know all about the suit, someone will be right down to accept service." The named individual arrived and accepted service. At the White House, the named person, said, "Yes, we accept papers like this, we stamp and x-ray them and then deliver them to the President."
THIS CASE IS NOT MOOT
Plaintiffs actual and threatened injuries are continuing. The armed forces of the United States remain engaged in hostilities directed against the Federal Republic of Yugoslavia. The US-led NATO air campaign bombed the government of Yugoslavia into submitting to the presence of a US-led NATO ground force in Kosovo to be comprised of 50,000 combat troops, including 7,000 from the United States. The US now has approximately 3,500 combat troops in Kosovo in an adversarial relationship with the government and people of the sovereign nation of Yugoslavia -- i.e., in a hostile environment.
Even if the armed forces of the United States were considered to be in Yugoslavia for a picnic on invitation by the people and government of Yugoslavia, the unconstitutional acts complained of here are likely to recur, in Yugoslavia or elsewhere, and would likely evade judicial review. Until 1946, the political branches showed greater respect for the Constitution. If the Executive felt he needed to engage the armed forces in hostilities overseas, he would ask Congress for a declaration of war. Since WWII, however, the political branches have stepped outside of the boundaries established by the Constitution around their power. In the words of Thomas Jefferson, "Once the Congress takes one step outside of the boundaries of its power established by the Constitution, it takes possession of a boundless field of power no longer capable of definition." Often, now, the armed forces of the United States engage in hostilities at the direction of the President, with Congress acquiescing, without any advance notice and long before anyone can get to petition the government for a redress of grievances. Plaintiffs legally protected interests under the War Powers clauses, and under the guarantee clause (U.S. Constitution, Article IV, §4), are frequently being invaded and harm is done before plaintiffs or anyone else can obtain judicial review. On information and belief, the following is a list of the countries that the U.S. has bombed, without a congressional declaration of war, and without specific statutory approval, since the end of World War II: the list was compiled by historian William Blum: China 1945-46, Korea 1950-53, China 1950-53, Guatemala 1954, Indonesia 1958, Cuba 1959-60, Guatemala 1960, Congo 1964, Peru 1965, Laos 1964-73, Vietnam 1961-73, Cambodia 1969-70, Guatemala 1967-69, Granada 1983, Libya 1986, El Salvador 1980s, Nicaragua 1980s, Panama 1989, Iraq 1991-99, Sudan 1998, Afghanistan 1998, Yugoslavia 1999. In addition, U.S. Presidents have engaged combat troops in hostilities in foreign countries, without first bombing those countries, and without a declaration of war. Examples include Lebanon 1983 and Somalia 1993.
McCulloch v State of Maryland, 17 US 316 stands for the principle that "a bold and daring usurpation might be resisted [by the courts], after an acquiescence still longer and more complete than this." Chief Justice Marshall at page 401. As in McCulloch, great principles of liberty are concerned in the case now before the bar. This case is directed at the long standing practice whereby the President of the United States, without the involvement of the peoples representatives in Congress, defines and punishes what he considers to be offenses by sovereign nations, by engaging the armed forces of the United States in military attacks and operations against that nation. This case involves constitutional claims against the Executive for usurping powers reserved to Congress, and claims against the War Powers Resolution of 1973, 50 U.S.C. §1541 et. seq., and said five official acts of Congress passed between March 23, 1999 and May 20, 1999. In McCulloch, the issue was "An act to impose a tax on all banks or branches thereof in the State of Maryland, not chartered by the Legislature." The first Congress created and incorporated a bank. Nearly each succeeding Congress, if not every one, has acted and legislated on the presumption of the legal existence of such power in the government. The executive and judiciary had acted upon it. "When all branches of the government have thus been acting on the existence of this power nearly 30 years (2/5/1791-1818), it would seem almost too late to call it in question; unless its repugnancy with the Constitution were plain and manifest." McCulloch at page 323.
When the court is asked to adjudicate the legality of Directives and Executive Orders of the President, it is not compelled to dismiss the case as moot whenever the Directives and Orders are withdrawn. Consideration of important legal issues ought not to be defeated by short-term orders, capable of repetition yet evading review. When the President stopped bombing the foreign sovereign nation while still maintaining that his legal position was justified, repetition is likely and plaintiffs claim should not be considered moot. See Doremus v U.S., D. Idaho 1992 793 F.Supp. 942.
PLAINTIFFS HAVE ECONOMIC STANDING
Aetna Life Insurance co. v Haworth, 57 S.Ct. 461, 464 and Buckley v Valeo, 96 S.Ct. 612 (1976) stand for the proposition that litigation presents an Art. III case or controversy if the complaint discloses that at least some of the plaintiffs have a sufficient "personal stake" in the determination of the constitutional validity of the challenged acts to present "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."
This litigation presents an Art. III case or controversy, since the complaint discloses that the plaintiffs have a sufficient personal stake in the determination of the constitutional validity of the War Powers Act of 1973, and of the Directives and Orders issued by the President (which engaged the armed forces of the United States in military actions against Yugoslavia), and of said five official acts of Congress related to the conflict in Yugoslavia taken between March23, 1999 and May 20, 1999, to present a real and substantial controversy admitting of specific relief through declaratory and injunctive relief.
The war powers clauses of Article I, Section 8 and Article II Section 2 operate, inter alia, as a specific constitutional limitation upon the exercise by Congress and the President of their taxing and spending powers, in much the same way as the First Amendment Establishment Clause does. See Flast v Cohen, 392 US 83 (1968).
In Flast v Cohen, the U.S. Supreme Court held that since the plaintiffs constitutional (First Amendment Establishment Clause) challenge was made with respect to a program involving a substantial expenditure of tax funds, and since the Establishment Clause operated as a specific constitutional limitation upon the exercise by Congress of its taxing and spending powers, the plaintiffs had standing to invoke a federal courts jurisdiction for an adjudication on the merits.
The issue involved in Flast v Cohen was an appropriation by Congress of approximately $100 million for textbooks to be used in private, parochial schools. In the case before the bar, the unconstitutional war against the Federal Republic of Yugoslavia is requiring an expenditure between 6 and 12.9 billion dollars. On or about April 23, 1999, President Clinton requested $6 billion to fund the war. On April 30, 1999 the House Appropriations Committee passed a $12.9 billion emergency spending bill and sent it on to the full house for a vote. The Senate and the House approved the measure on May 20, 1999.
In the instant case, petitioners constitutional challenge is made with respect to Presidential and Congressional action and inaction related to expensive military operations against the Federal Republic of Yugoslavia by United States Armed Forces. The cost of these unconstitutional military operations, to be paid by U.S. taxpayers, is estimated at $6 to12 billion for starters, plus billions more to repair the damage being caused by the military operations -- estimated at $100 billion. Therefore, citizen-taxpayer-petitioners have standing to invoke the federal courts jurisdiction for an adjudication on the merits because of the federal questions involved. They have successfully met the two-pronged nexus test established by Flast.
It is important to note that standing to maintain constitutional challenges involving economic harm appears to be based as much on court policy as on a constitutional foundation. Flast v Cohen, 392 US 83, 93. "Justiciability is not a legal concept with fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures ." Flast at 95, quoting from Poe v Ullman, 367 US 497, 508 (1961). The doctrine of justiciability "has become a blend of constitutional requirements and policy considerations." Flast at 97 quoting from Barrows v Jackson, 346 US 249, 255. "There is no absolute bar to judicial review by taxpayers challenging allegedly unconstitutional taxing and spending programs." Flast at 101.
Petitioners action is a "good faith pocketbook action" in which petitioners allege a "direct and particular interest," quoting Doremus v Bd. Of Education Of Hawthorne, 342 US 429, 434-35 (1952).
Petitioners actual injury as a result of the challenged actions is concrete, measurable and substantial.
Petitioners threatened injury as a result of the recurrence of the actions complained of here and of the continuation of the challenged actions is concrete, measurable and substantial. The controversy is justiciable, and the court, by issuing declaratory and injunctive relief, may provide a complete remedy for the wrongs complained of.
Every U.S. missile fired and every U.S. bomb dropped will have to be replaced at great
expense. Every U.S. plane lost will have to be replaced at great expense. The U.S. may
well be liable for the deaths of hundreds of innocent civilians, including those killed
while riding in buses and trains and on tractors, while walking in refugee columns, and
while at work in office buildings and factories. And, the more damage done by order of the
Executive Branch, with the acquiescence of Congress, to the infrastructure of Yugoslavia
and other nations, the more U.S. tax revenue will be needed for reconstruction.
Unless the Court permanently enjoins further U.S. military operations in Yugoslavia, defendants will mortgage substantially more of petitioners tax dollars and their childrens personal and financial futures.
PLAINTIFFS HAVE NON-ECONOMIC STANDING
All plaintiffs, as citizens of the United States, claim standing to maintain this action before the federal judiciary because the defendant legislative and executive branches have, by their formal actions, demonstrated that they are cooperating in a collective decision to deny the people constitutional governance carried out in decency and good order. The privileges and immunities of citizens of the United States are denied to these plaintiffs by the governments unconstitutional actions described here. The questions raised are not political questions. Plaintiffs cannot turn to the Congress for the relief to which they are entitled because Congress has cooperated with the President in committing the unconstitutional actions plaintiffs are challenging. The questions plaintiffs have raised are not mere political questions to be settled by defendant Congress. Plaintiffs are challenging acts of the Congress (as well as acts of the President) as being violative of the Constitution on their face and in their application.
All plaintiffs claim standing under Article III, Section 2 of the U.S. Constitution; "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and treaties made, or which shall be made, under their Authority ." This case arises under a) Articles I and II of the U.S. Constitution; b) the jurisdictional and substantive laws of the United States (House Concurrent Resolution 82, House Joint Resolution 44, Senate Concurrent Resolution 21, the War Powers Resolution of 1973, and 28 U.S. Code section 1331); c) an existing treaty with the presumptive status of federal law, renewed and extended as recently as 1997 (NATO); and d) a treaty proposed but officially yet to be made, i.e., the NATO treaty with the amendments allegedly agreed to by President Clinton during the April 24-25, 1999 NATO summit meeting in Washington. See Complaint, ninth claim. As citizens and taxpayers, the plaintiffs should have standing -- the standing doctrines enforced without a basis in either the U.S. Constitution or the longstanding practices of the federal courts before about 40 years ago notwithstanding. The bulk of the recent and adverse citizen/taxpayer standing decisions of the federal courts have arisen to thwart well-grounded constitutional challenges to military and foreign aid policies and actions of the Executive Branch. Many of these were actions initiated by the Executive as an end-around one or more of the enumerated powers of Congress. This is the case here. However, in this case, Congress has aided and abetted the President and is, therefore, a defendant because they are allowing the Executive to do that which only the Congress can do.
The courts attention is directed to paragraphs 78-81 of the Complaint which further support plaintiffs argument that they have standing to maintain this action.
PLAINTIFFS QUESTIONS ARE JUSTICIABLE
Youngstown Sheet & Tube Co. v Sawyer, 72 S.Ct. 863 stands for the proposition that the President does not have "inherent" power to be exercised in the public interest even when the nation is at war and the national interest and American lives are at stake. Rather, the Presidents power to define and punish atrocities and human rights violations committed by the ruler of a sovereign country against that rulers people, and to utilize the armed forces of the United States to inflict such punishment, and to otherwise "do the right thing," would have to stem either from an Act of Congress or from the Constitution itself. See Youngstown, 72 S.Ct. 863, 866.
The Youngstown court made clear the principle that there are some powers that are fixed and limited and that cannot be circumvented no matter the level of practical difficulty of following established constitutional procedures. The power to decide "war or peace" is clearly one such power.
In Youngstown (heard and decided in May, 1952), the nation was already at war with North Korea and China. At home, the United Steel Workers were about to go on strike against most of the nations steel mills. The President of the United States unilaterally determined that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel. Reciting those considerations for his actions, the President directed the Secretary of Commerce to take possession of the steel mills and keep them running. The Secretary immediately issued his own possessory orders. The next morning, the President sent a message to Congress reporting his action. By failing to authorize the seizure or to put an end to the Presidents seizure of the steel mills until it (Congress) authorized a seizure of the mills, Congress colluded with the President. Congress abdicated and acquiesced. Congress was allowing the President to usurp its power. The steel companies then brought proceedings against the President in the District Court, charging that the seizure was not authorized by an Act of Congress or by any constitutional provisions.
There is no statute or treaty that expressly authorizes the President to initiate or participate in military action against a sovereign nation that offers no threat to the people, territory or interest of the United States or its allies. Nor is there any act of Congress or treaty from which such a power can fairly be implied. Instead, the Constitution reserves those powers to the Congress. See Article I, Section 8, cl. 10, 11, 14, 15 and 16.
However, beginning on March 24, 1999, citing humanitarian concerns brought about by alleged human rights violations and atrocities, the President began issuing a series of directions and Executive orders to the Secretary of Defense to use the armed forces of the United States, including the reserves, in military strikes and operations against civilian and military targets within the Federal Republic of Yugoslavia in an attempt to force an end to the low-grade civil war that was underway within the borders of Yugoslavia and between two ethnic/religious/ cultural groups of people.
Just as the seizure order in Youngstown could not be sustained because of those several constitutional provisions that do grant executive power to the President, such as the power of "Commander in Chief" (Youngstown at 867), President Clintons written Directives and Executive Orders to engage in military strikes and operations against Yugoslavia cannot be sustained. "The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute." Youngstown at 867.
Just as in Youngstown, the Presidents Directives and Executive Orders at issue in the instant case do not direct that a congressional policy be executed in a manner prescribed by Congress -- they direct that a presidential policy be executed in a manner prescribed by the President. The powers of Congress to define and punish offenses against humanity and to adopt such public (war making) policies as those proclaimed by President Clintons Directives and Executive Orders is beyond question. Congress can authorize military strikes and operations against the Federal Republic of Yugoslavia. It can make laws regulating the armed forces and the militia with respect to the conflict in Yugoslavia. The Congress did not subject this law making power of Congress to Presidential or military supervision or control.
Youngstown stands for the proposition that "even if other Presidents have usurped powers of Congress in like manner, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution in the government of the United States or in any Department or offices thereof." Youngstown at 588, 589.
"The Founders of this Nation entrusted the law [and war] making powers to the Congress alone in both good and bad times." Youngstown at 867.
In Youngstown, at 869, Justice Jackson warned against "los[ing] sight of enduring consequences upon the balanced power structure of our Republic," while emphasizing transient results upon Executive policies. Justice Jackson wrote that "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system." Youngstown at 871.
In this case, the challenged actions of the President can be sustained only by holding that the power to define and punish, with the full might of the U.S. armed forces, offenses against human rights by leaders of sovereign nations (which, incidentally, are members of the United Nations in good standing), against their own people, within their own territorial borders, "is within the Presidents domain and beyond control by Congress." See Youngstown at 872.
Based on the above, plaintiffs respectfully request a preliminary and a final order:
e) directing the President of the United States to remove United States Armed Forces from their offensive positions in connection with the present operations against the Federal Republic of Yugoslavia, and
DATED: July 7, 1999