Joseph v. United States of America Brief for Petitioner

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October Term, 1968.

No. 001.

GEORGE IVAN JOSEPH, 

against
Petitioner,

UNITED STATES OF AMERICA,
Respondent.

Ok  W rit  of Certiorari to T h e  U nited  S tates C ourt of 
A ppeals  for t h e  T w e l f t h  C ir c u it .

BRIEF FOR PETITIONER.

R obert M ill e r ,
R ichard M it c h e l l ,
J am es W awro,

Attorneys for Petitioner, George Ivan 
J  oseph,

Cornell Law School,
Ithaca, N. Y.



Table of Contents.
Page

Preliminary Statement ........... ............................... .....  1

Questions Presented ...................................... .............  2

Constitutional Provisions and Treaties Involved .......  3

Statement of Facts ......................................................  3

Summary of Argument ......... ...... ................ ........... . 4

Argument .................... ..... ..........................................  5

I. Under the modern approach to the “Political Ques­
tion” doctrine this court has both the power 
and the responsibility to adjudicate the issue 
of petitioner being ordered to participate in 
an undeclared war in Vietnam which violates 
the Constitution of the United States, its 
treaty obligations, and international law ......  5

II. The deprivation of the petitioner’s Fifth Amend­
ment rights gives this court jurisdiction over 
the subject matter of his action challenging 
the constitutionality of the war. This depriva­
tion of his legal rights coupled with his ob­
vious adverse interest to the President’s con­
duct of the war gives petitioner standing to 
sue 11



11.
Page

III. Executive action in committing our military
forces to a war of the scope and size of that 
in Vietnam is an unconstitutional usurpation 
of the power of Congress to declare war ......  14

A. Neither by its actions nor by its words has 
Congress exercised its sole prerogative to com­
mit the nation’s armed forces to a war such
is being conducted in Vietnam _______ ______ 14

B. The President’s power as Commander-in-
Chief is not sufficient constitutional authori­
zation for engaging five-hundred thousand 
troops in an extended foreign war without the 
required Congressional authorization ..............  19

IV. The unilateral action of the United States in
Vietnam violates the duties and obligations 
this country has assumed as a member of the 
United Nations and directly conflicts with the 
clear provisions of the SEATO treaty _____ 22

A. The present war was entered into in direct 
contravention of Article 33 (1) of the United 
Nations charter in that it disrupted a “peace­
ful solution” previously reached at the Geneva
Conference of 1954 ........... ..... ...................... 23

B. The charter’s exceptional authorization of col­
lective and individual self-defense is unavail­
able as a justification for United States inter­
vention in Vietnam ........ ............... ..................  24

C. The United States has violated the explicit
directives of the SEATO treaty under which 
it purports to justify its unilateral interven­
tion ............... ................................................ ...... . 26



Page
iii.

V. The United States, as a member of the United 
Nations and of the civilized world community, 
is bound by international law to refrain from 
disturbing efforts among other nations and 
peoples to peacefully settle their differences .... 29

A. The war in Vietnam is a civil war and no 
right of intervention on the part of the United 
States exists on behalf of one or the other of
the factions involved therein ______ _____ ~ 30

B. United States participation is a direct sabo­
tage of the Geneva Accords, which were ar­
rived at in accordance with the “peaceful set­
tlement” provisions of Article 31 of the United 
Nations charter ________________________ 32

Conclusion ________________________________—. 36

Appendix A _______________ ____ ________ __—  39

Appendix B _________________________ ______  46



IV .

CITATIONS

Cases:
Baker v. Carr, 369 U. S. 186 (1962) -------- 6, 8, 11, 12, 13
Bas. v. Tingey, 4 Dali. 37 (1800)  ....... ...........-......----- 10
Braxton County Court v. West Virginia, 208 U. S.

192 (1903) .................. - - .........-......- - ......-....  12
The Brig Amy Warwick, 2 Black 635 (1863) ........... 21

Carrol v. Becker, 285 II. S. 380 (1932) .................—- 8
Colegrove v. Green, 383 U. S. 549 (1946) ..................  9
Coleman v. Miller, 307 U. S. 433 (1939) ................ -....  7, 8
Cook v. United States, 288 IT. S. 102 (1933) .............. 29

Ex Parte Endo, 323 U. S. 283 (1944) ....... ................. 18

Federal Communications Commission v. Sanders,
309 U. S. 470 (1940) ____________________ 13

Flast v. Cohen, 393 U. S. 83 (1968) _____ ___ ___  12, 13

Greene v. McElroy, 360 IJ. S. 474 (1959) ...... ........... 18

The Habana, 175 U. S. 677 (1900) ....... .................  11, 29
Hearne v. Smylle, 378 U. S. 563 (1964) .................  12
Hirabayashi v. United States, 320 U. S. 81 (1943) .... 10

Joint Anti-Fascist Befugee Committee v. McGrath,
341 U. S. 123 (1951) ............ .............. ............  13

Koenig v. Flynn, 285 U. S. 375 (1932) .................... . 8
Korematsu v. United States, 323 U. S. 214 (1944) .... 10

Page



V.
Page

Levine v. O’Connell, 275 App. Div. 217, 88 N. Y. S.
2d 672 (1949), aff’d 300 N. Y. 658 (1950) ......  15

Luftig v. McNamara, 373 F. 2d 664 (D. C. Cir. 1967), 
cert, denied sub nom. Mora v. McNamara, 389 
U. S. 934 (1967) ............................ -.................  36

Marbury v. Madison, 1 Cranch 137 (1803) ............- 6
Muskrat v. United States, 219 U. S. 346 (1911) ......  12

O’Neal v. United States, 140 F. 2d 908 (6th Cir.
1944), cert, denied 322 U. S. 729 (1944) ..........  22

Panama Refining Co. v. Ryan, 293 0. S. 388 (1935) 15
Perkins v. Leukins Steel Co., 310 U. S. 113 (1940) .... 13
Prize Cases, 2 Black 635 (1863) ....... ............... ......... 10,11

Reid v. Covert, 354 U. S. 1 (1.957) ....... ..................... 26

San Lorenzo Title and Improvement Company v.
Caples, 48 S. W. 2d 329 (Texas, 1932) _____ 23

Schechter Poultry Corp. v. United States, 259 U. S.
495 (1935)  ................................................... - 15

Scholle v. Hare, 359 U. S. 429 (1962) ______ ____ 12
Smiley v. Holm, 285 U. S. 355 (1932) ........ ................. 8

United States v. Macintosh, 283 U. S. 605 (1931) —  29
United States v. Minnesota, 270 U. S. 181 (1926) .... 26
United States v. Robel, 389 U. S. 258 (1967) ........... 15

Westberry v. Sanders, 376 IT. S. 1 (1964) .................  8, 9

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S.
479 (1952) ...... .......... ....................................  19, 20



V I.

Constitution:

United States Constitution
Article I, Section 4, Clause 1 ........... ................ 9, 39
Article I, Section 8, Clause 11 ..... ...........  14, 27, 39
Article II, Section 2, Clause 1 ___ ____ ____  19, 39
Article II, Section 2, Clause 2 ................. ........... 27
Article VI, Clause 2 ................................... . 22, 24, 39
Amendment V ........................................... ........... 39

Resolutions:

Page

Affirmation of the Principles of International Law 
Recognized by the Charter and Judgment of 
the Nuremberg Tribunal, G. A. Res. 95 (I),
9 U. N. Gaor, at 188 U. N. Doc. A/64/Add.
1 (1947) ............ ......................................

Southeast Asia Joint Resolution (Gulf of Tonkin
Resolution), Aug. 10, 1964, 78 Stat. 384 .. 14, 15, 18,

28, 44

Statutes:
28 U. S. C. 1331(a)
28 U. S. C. 2201 ......

12
12

Treaties and International Documents:
Geneva Conference on the Problem of Restoring 

Peace in Indo-China, (Geneva Accords of 
1954) July 21, 1954, Great Britain Misc. #20 
(1954) (Cmd. 9239); reproduced in 60 A. J.
I. L. 629 (1966) .............  18, 23, 24, 25, 30, 31, 32,

33, 34, 35, 40



V ll .

Page

Southeast Asia Collective Defense Treaty 
(SEATO), Sept. 8, 1954 (1955), 6 XT. S. T. 81,
T. I. A. S. 3170; 209 U. S. T. S. 28 .... 22, 26, 27,

28, 42
United Nations Charter, June 26, 1945, 59 Stat. 1031

(1945); T. S. No. 993
Article 33 (1) ___ _____ ___________23, 24, 32, 43
Article 51.............................. ............... . 24, 25, 43

United States Declaration on Indo-China, 31 Depart­
ment of State Bulletin 162 (1954) .............. 34, 41

Miscellaneous:
Congressional Record, vol, 112 (1964) .......... . 16, 17, 18
Department of State, Office of the Legal Adviser,

The Legality of the United States Participa­
tion in the Defense of Vietnam, 60 A. J. I. L.
565 (1966) ..................18, 19, 20, 21, 24, 25, 26, 30, 33

Falk, Vietnam Critique, 75 Tale L. J. 1134 (1966) .... 31
Pall, Vietnam Witness: 1953-1966 (1966) ...... ....... 25, 31
Fourth Interim Report of the International Control 

Commission, Vietnam No. 3, Cmd. No. 9654 
(1955) __________________ ____ _____ ___ 33, 34

Hackworth, Digest of International Law (1943) ___  28
Hyde, International Law (2nd ed. 1947) ............... . 36
LaCoutre, The Two Vietnams (1966) .................  25, 30
Majority Leader Mansfield, Report to the Senate,

90th Cong. 1st Sess. (1967) ............................. 26
McDougal and Associates, Studies in World Public 

Order (1960) 32



V l l l .

Page

Oppenheim, International Law (7th ed., Lauterpacht,
1955) ............ ......................................................  36

Padelford, International Law and Diplomancy in The
Spanish Civil War (1939) ____ ____________ 31

Undersecretary of State Katzenbach, Hearings be­
fore the Committee on Foreign Relations of 
the United States Senate, 90th Cong., 1st 
Sess. (1967) ................................ ............. ....... . 20



I n  t h e

( to r t  of ilio HUnxUb Btixtis
O ctober T erm , 1968.

No. .001

George I van J oseph
Petitioner,

v.

U n ited  S tates of A merica .
Respondent.

O n  W rit of Certiorari to t h e  U nited  S tates C ircuit  
C ourt of A ppeals  for t h e  T w e l ft h  C ir c u it .

BRIEF FOR PETITIONER.

Preliminary Statement.

The petitioner in this action is a private in the United 
States Army seeking an injunction against the United 
States forbidding the Secretaries of Defense and of the 
Army from ordering him to serve in Vietnam (R. 6, 7), 
and a declaratory judgment that United States military 
involvement in Vietnam is unconstitutional and violative 
of various treaties to which the United States is a party, 
(R. 7). The United States Government has consented to 
be sued in this action, (R. 8).

The United States District Court of the Middle Dis­
trict of Bliss dismissed the complaint for failure to state 
a cause of action on the ground that the issues were 
political in nature and could not be heard by the court.



2

(E. 4). The Court of Appeals for the Twelfth Circuit 
affirmed the dismissal (R. 12) and the Supreme Court 
granted certiorari. (R. 13).

Questions Presented.

1. Whether, in light of the modern developments in­
volving the “political question” doctrine, this court may 
properly adjudicate issues relating to executive usurpation 
of Congressional power to declare war, and violations
of treaties and international law. (see infra, pages 5 to 
11) .

2. Whether forcing petitioner to participate in a war 
which is both unconstitutional and violative of interna­
tional law is such an abridgement of his Fifth Amend­
ment Due Process Rights as to constitute an “immediate 
legal injury,” thereby giving him “standing” to bring 
this suit? (see infra, pages 11 to 13).

3. Whether the large-scale continuing committment to 
combat of United States’ armed forces in Yietnam with­
out congressional authorization or declaration of war 
violates Article I, Section 8, of the United States Con­
stitution, which gives Congress and Congress alone the 
power to declare war. (see infra, pages 14 to 22).

4. Whether the unilateral intervention by the United 
States in an internal war between the two sections of 
Vietnam is in violation of our obligations under the 
United Nations Charter, and of our duties as a signatory 
of the SEATO treaty, (see infra, pages 22 to 29).

5. Whether the United States’ committment of armed 
forces to the conflict in Vietnam is in violation of inter­
national law as a disruption of the previous “negotiated 
settlement” effected by the Geneva Conference of 1954.
(see infra, pages 29 to 36).



3

Constitutional Provisions and Treaties Involved.

United States Constitution:
Article I, Section 4, Clause 1 
Article I, Section 8, Clause 11 
Article II, Section 2, Clause 1 
Article VI, Clause 2 
Amendment V 

Treaties:
Charter of the United Nations, June 26, 1945, 59 Stat. 

1031 (1945); T.S. No. 93
Southeast Asia Collective Defense Treaty, (SEATO) 

Sept. 8, 1954 (1955), 6 U.S.T. 81; T.I.A.S., No. 3170; 209 
U.S.T.S. 28
(The pertinent texts of these provisions are set forth in 
full in the appendix, and where applicable in the argu­
ment).

Statement of Facts.

The petitioner, George Ivan Joseph, registered for the 
draft in February, 1962, when he reached eighteen years 
of age. (R. 1, 9). The local draft board classified the peti­
tioner 2-S (deferred) and continued to classify him 2-S 
for the next four years while he was in college. (R. 1, 9). 
Upon his graduation from college in 1966, petitioner’s 
local board reclassified him 1-A (available for military 
service). (R. 1, 9). Joseph objected to the classifica­
tion on the ground that he was a conscientious objector 
to the Vietnam war in particular; but after a hearing in 
November, 1966, the local board denied petitioner con­
scientious objector status because he was not opposed to 
“war in any form” within the meaning of Section 456 (J) 
of the Uniform Military Training and Service Act. (R.



4

1, 2, 9, 10). Appeal from the Board’s decision was de­
nied and petitioner was drafted on June 20, 1967. (R. 2, 
10). He duly reported for induction, and went into the 
army (R. 2). Petitioner did not then nor does he now 
seek to escape from military service. (R. 2). He simply 
seeks to aviod participation in what he claims to be an 
illegal war. (R. 3, 5). Judge Phaire, in the District 
Court opinion beloAv noted that “few young men with 
his belief have attempted so scrupulously to abide by 
laws and regulations.” (R. 2).

Upon completion of basic training and advanced in­
fantry training at Fort Dunning, Bliss, the petitioner 
was assigned to a unit scheduled to be sent to Vietnam. 
(R. 2). At that time, petitioner requested through the 
proper military channels that he be assigned to another 
unit since he was conscientiously opposed to the Viet­
nam war (R. 2, 5, 6, 10). The request was denied and 
review thereof finally denied by the Secretary of the 
Army (R. 2). On December 4, 1967, petitioner was or­
dered to report to his assigned unit, but he refused to do 
so and was ordered confined to the post pending court- 
martial proceedings (R. 2). A general court-martial 
was convened, but hearings were postponed until twenty 
days after the final determination of this action (R. 2, 6, 
7, 10).

Summary of Argument.

The petitioner is alleging that he has been ordered to 
fight in an undeclared and therefore unconstitutional 
war which is in violation of United States treaty obliga­
tions and international law. We contend that the courts 
below erred in characterizing the subject matter of this 
suit as political in nature. In light of the Supreme 
Court’s continued erosion of the “political question” doc­
trine, and in light of the great magnitude of the issues



5

involved, it is our position that petitioner should be 
granted a realistic day in this court by having it hear 
the merits of his claim. Certainly it cannot be argued 
that petitioner lacks standing to sue for lack of an ad­
verse personal interest or legal injury if the respondent 
persists in its order that he be shipped to Vietnam.

On the merits, the petitioner contends that the Vietnam 
war is unconstitutional because the executive has single- 
handedly committed our forces to the conflict without 
Congressional authorization or declaration of war. In 
addition, the unilateral American intervention in Vietnam 
is unconstitutional because it is in direct violation of 
treaties to which the United States is a party, and of 
prevailing doctrines of international law. Because the 
war in Vietnam is unconstitutional, the Due Process 
Clause of the Fifth Amendment precludes the United 
States from ordering petitioner to participate in it.

ARGUMENT.

I.

Under the modern approach to the “Political Ques­
tion” doctrine this court has both the power and the re­
sponsibility to adjudicate the issue of petitioner being 
ordered to participate in an undeclared war in Vietnam 
which violates the Constitution of the United States, 
its treaty obligations, and international law.

We anticipate that if this court reaches the merits of 
this controversey it will find that the Vietnam wTar is 
an unconstitutional executive usurpation of Congressional 
power. The crucial question, therefore, is whether, as­
suming the war to be unconstitutional, this court can 
or should so adjudicate it over the “political question”



6

objection raised by the government. Petitioner suggests 
that an affirmative answer is compelled under a full 
consideration of the current judicial definition of a 
“political question”. It is our position that, in light of 
the demonstrated inability or unwillingness of Congress to 
act during our involvement in this war, this court is the 
only branch of the government which can and must now 
intervene to prevent a continuous violation of the United 
States Constitution.

Historically, the power of the court to delineate the 
authority of the various branches of government has 
been a major part of the court’s role in the constitutional 
scheme. As Chief Justice Marshall said in Marbury 
v. Madison, 1 Cranch 137 (1803), at 177-178:

It is, emphatically, the province and duty of the 
judicial department, to say what the law is. Those 
who apply the rule to particular cases, must of 
necessity expound and interpret that rule. If 
two laws conflict with each other, the courts must 
decide on the operation of each. So, if a law be in 
opposition to the constitution; if both the law 
and the constitution apply to the particular case, 
so that the court must either decide that case, con­
formable to the law, disregarding the constitution; 
or conformable to the constitution disregarding the 
law; the court must determine which of these con­
flicting rules governs the case; this is of the 
very essence of judicial duty.

Recently, in Baber v. Carr, 369 U.S. 186 (1962), at 211, 
the court said:

Deciding whether a matter has in any measure been 
committed by the Constitution to another branch 
of government, or whether the action of that 
branch exceeds whatever authority has been com­
mitted . . .  is a responsibility of this court as 
ultimate interpreter of the Constitution.



7

Thus, from its inception, to the very recent past, this 
court has consistently held that it has the power to 
determine which branch of the federal government has 
the constitutional authority to make particular decisions.

The Supreme Court has also held, however, that certain 
cases otherwise properly presented before it would not 
be decided by the court because these cases presented 
issues which should more properly be decided by other 
branches of the government. The “political question” 
doctrine, which the government seeks to invoke here does 
not apply to the case at bar.

The test for what constitutes a “political question” has 
evolved considerably in recent years. In Coleman v. 
Miller, 307 U.S. 433 (1939), the court declined to hear 
the merits of a case on the grounds that it presented 
a political question, saying, at 454:

In determining whether a question falls within that 
category, the appropriateness under our system 
of government of attributing finality to the action 
of the political departments and also the lack 
of satisfactory criteria for a judicial determination 
are dominant considerations.

This test indicates that the court will not decide a ease 
where there is a lack of satisfactory criteria for a judicial 
determination. In the case at bar, the petitioner is 
asking the court to declare the war in Vietnam uncon­
stitutional and violative of treaties and international 
law. The legal criteria necessary for such a determina­
tion can be found in the plain language of the Constitution 
and the treaties to which the United States is a signatory. 
In Coleman v. Miller, supra, there was no constitutional, 
provision for the court to interpret in deciding whether 
a state legislature could ratify a Constitutional amend­
ment after once having rejected it. The Coleman case 
was a proper case for the court to invoke the “political



question” doctrine because there was no authority what­
soever applicable to the issues. But here, there is abund­
ant constitutional and treaty authority for the court to 
apply. Therefore, the case at bar satisfies the test of 
sufficient legal criteria to determine the issues.

As the “political question” doctrine was invoked in 
cases subsequent to Coleman v. Miller, 307 U.S. 433 
(1939), a new test began to evolve for “political ques­
tions.” In Baker v. Carr, 369 U.S. 186 (1962), the court 
defined “political questions” by saying, at 211:

The nonjusticiability of a political question is 
primarily a function of the separation of powers 
. . . Deciding whether a matter has in any measure 
been committed by the Constitution to another 
branch of government . . .  is a responsibility of 
this court as the ultimate interpreter of the Con­
stitution.

Thus, the emphasis of the “political question” doctrine 
had shifted in Baker v. Carr, supra, from the lack of 
judicial criteria to the principle of separation of powers. 
The government argues in this case that the Vietnam 
war is a “political question” since the decision to con­
duct it is within the province of the executive department 
of the government. Their argument is that, once the 
Executive has made a decision to commit the nation to 
war, the court cannot review that decision.

However, since the decision of this court in Wesberry v. 
Sanders, 376 U.S. 1 (1964), the argument can no longer 
be maintained that a decision, even if made by the de­
partments of government charged in the Constitution with 
making the decision, is not reviewable by the Supreme 
Court. See also: Carrol v. Becker, 285 U.S. 380 (1932); 
Koenig v. Flynn, 285 U.S. 375 (1932); Smiley v. Holm, 
285 U.S. 355 (1932). Article I, Section 4, Clause 1, of 
the Constitution provides:



9

The Times, Places, and Manner of holding Elections 
for Senators and Representatives shall be pre­
scribed in each State by the Legislature thereof; 
but the Congress may at any time by Law make 
or alter such Regulations, except as to the places 
of choosing Senators.

Clearly, the Constitution charges the States with the 
duty of providing for the election of Congressmen and 
provides that Congress shall be the forum for change if 
the States have not faithfully discharged this duty. How­
ever, the court in Wesberry, supra, changed a state’s 
reapportionment rule and ordered “one man, one vote” 
to be the rule in selecting Representatives. The court 
itself changed the rule, eAmn though a co-ordinate branch 
of the government was specifically charged with this 
duty, and in spite of a decision squarely holding that 
reapportionment was a “political question” solely within 
the province of Congress. Colegrove v. Green, 328 TJ.S. 
549 (1946). After the court’s Wesberry decision it 
can hardly be said that the court cannot hear cases 
involving decisions made by co-ordinate branches of gov­
ernment. The political question test does not preclude 
the court from hearing the present case merely on the 
grounds that a co-ordinate branch of government, the 
Executive, has found the war to be consonant with the 
Constitution.

The impact of these decisions is obvious. The issues 
presented in this case do not fall within the classic tests 
for invoking the “political question” doctrine. In ad­
dition, these tests have been eroded to the point where 
the doctrine is one primarily of “judicial restraint”. This 
court in Wesberry v. Sanders, supra, had exercised re­
straint for over sixty years from the time the fact of 
illegal apportionment was first presented, before the 
court corrected the situation. The court finally deter­
mined that it could wait no longer for Congress to act, 
and stepped in itself to right this clear constitutional



10

wrong. In the case at bar, Congress has failed to rec­
tify an unconstitutional situation existing since at least 
1964. Since the issues presented here are those of the 
very lives of thousands of servicemen in Vietnam and 
the petitioner in particular, this court should abandon its 
restraint and afford petitioner a forum to rectify this 
unconstitutional deprivation of his Fifth Amendment 
rights. There is no reason, in light of the magnitude of 
the issues involved, for petitioner to be forced to wait 
longer to air his constitutionally justified grievances.

The traditional tests and the court’s more recent treat­
ments of “political questions” do not preclude the court 
from hearing this ease. In addition, the court should 
hear the merits of the petitioner’s claim. Surely, if 
some future President were, on his own, to embark 
upon world conquest, unconstitutionally committing our 
troops to world war, this court would not retreat from 
the merits of the controversy. The magnitude of the 
issues and the clear illegality of the President’s action 
would require this court to adjudicate the case. In 
fact, a far less clearly illegal executive action has, in 
the past, prompted this court to rule on the constitution­
ality of our going to war. When Confederate forces 
fired on Fort Sumter in 1861, President Lincoln declared 
a naval blockade of all Southern ports. Privateers seized 
ships pursuant to the blockade and the ownership of 
these vessels was litigated in the Prize Cases, 2 Black 
635 (1863). The issue there was whether a state of 
war legally existed when the President declared the 
blockade. The Supreme Court did not dismiss the suit 
because it presented a “political question,” but rather 
passed upon the merits in the action, holding, inter alia, 
that Congress had specifically ratified the acts of the 
President. See also: Bas v. Tingey, 4 Dali. 37 (1800); 
Hirabayashi v. United States, 320 U.S. 81 (1943); Kore- 
matsu v. United States, 323 U.S. 214 (1944); The Paquette



11

Habana, 175 U.S. 677 (1900). The Prize Cases, supra, 
are clear precedent for the proposition that the court 
faces no political question when the issue in a case 
is which branch of the federal government has the ultimate 
power to commit the nation to war—the precise issue 
raised in the case at bar.

The conclusion from this investigation of the “political 
question” doctrine is that the petitioner’s case can and 
should be decided on its merits. This court is the 
ultimate interpreter of the Constitution and should dis­
charge that function unless a case otherwise properly 
presented before the court involves a “political question.” 
Under the traditional tests and recent judicial definitions 
of “political questions,” no such question is presented 
in this ease. Finally, in the Prize Cases, supra, the court 
lias passed upon the precise issues raised in this case. 
Therefore, the court has the constitutional power and 
duty to pass on the merits here presented.

II.

The deprivation of the petitioner’s Fifth Amendment 
rights gives this court jurisdiction over the subject 
matter of his action challenging the constitutionality 
of the war. This deprivation of his legal rights 
coupled with his obvious adverse interest to the 
President’s conduct of the war gives petitioner standing 
to sue.

In Baker v. Carr, 369 U.S. 186 (1962), this court 
exhaustively dealt with the requirements necessary for 
subject matter jurisdiction. The court said that a suit 
would be dismissed for lack of subject matter jurisdiction 
only if it did not:



12

arise under the Federal Constitution, laws or 
treaties . . .  or is not a “case or controversy” 
within the meaning of that section; or the cause 
is not one described by any jurisdictional statute. 
369 U.S. at 199

See also: Hearne v. Smylle, 378 U.S. 563 (1964); Scholle 
v. Hare, 369 U.S. 429 (1962).
In the present case, the cause arises under the Federal 
Constitution because the petitioner is claiming that by 
sending him to Vietnam the Secretaries of the Army 
and Defense are depriving him of life and liberty with­
out due process of law in contravention of the Fifth 
Amendment. The present suit is a “ease or controversy” 
within the meaning of Article III, Section 2, Clause 1, of 
the Constitution because the petitioner is presenting a 
real controversy rather than a friendly suit, Muskrat v. 
United States, 219 U.S. 346 (1911); the petitioner is
“interested in, and adversely affected by, the decision”
of which he seeks review, Braxton County Court v.
West Virginia, 208 U.S. 192, 197 (1903); the petitioner’s 
interest is “of a personal, and not of an official, nature”, 
Braxton, supra, at 197; and the petitioner’s interest is 
substantial, with a “logical nexus between the status 
asserted and the claim sought to be adjudicated”, Blast 
v. Cohen, 392 U.S. 83, 102 (1968). Finally, the case
is one described by 28 U.S.C. Sections 1331 (a) and 
2201. Therefore, since the petitioner’s case clearly meets 
all of the requirements for subject matter jurisdiction 
set forth in Baker v. Carr, 369 U.S. 186 (1962), the court 
may exercise jurisdiction.

The test for the standing of a plaintiff to sue is also 
set forth in Baker v. Carr, supra, at 204:

Have the appellants alleged such a personal stake 
in the outcome of the controversy as to assure 
that concrete adverseness which sharpens the pres­
entation of issues upon which the court so largely



13

depends for illumination of difficult constitutional 
issues? This is the gist of the question of stand­
ing.

This court has held that the requisite adverse personal 
interest may consist of nothing more than mere economic 
competition. Federal Communications Commission v. 
Sanders, 309 U.S. 470 (1940). Since the petitioner in 
this case will be sent to armed combat in Vietnam unless 
this court directs otherwise, the petitioner has the req­
uisite adverse personal interest necessary to maintain 
this suit.

In addition to a personal stake in the outcome of the 
controversy, this court has held that the petitioner 
must have a “legal right” upon which to base his 
claim. Perkins v. Leukins Steel Co., 310 U.S. 113 (1940). 
Such a legal right to be free from the alleged injury can 
be based on the common law, Perkins v. Leukins Steel Co., 
supra; a statute, Baker v. Carr, 369 U.S. 186 (1962); or 
the Constitution, Joint Anti-Fascist Refugee Committee 
v. McGrath, 341 U.S. 123 (1951). The plaintiff is here 
alleging that ordering him to participate in an uncon­
stitutional war violates his Fifth. Amendment Due Process 
rights. Hence, the petitioner’s “legal right” is a con­
stitutional right and is sufficient to sustain his claim. 
See Flast v. Cohen, 392 U.S. 83 (1968).

Therefore, since the petitioner has both an adverse 
personal interest and a “legal right” based upon the 
Constitution, he has standing to sue in this action.



14

III.

Executive action in committing our military forces 
to a war of the scope and size of that in Vietnam is 
an unconstitutional usurpation of the power of Con­
gress to declare war.

The Constitution specifically relegates the power to 
declare war to the legislative branch. Article I, Section 
8, Clause 11, United States Constitution, states:

“The Congress shall have Power . . . (11) to declare 
War . . . ” By conducting continuous large-scale military 
operations in Vietnam, the executive branch is acting 
beyond the Constitution and has usurped Congress’ power 
to declare war. Clearly, the Framers of the Constitution 
intended that such power not be lodged in one man. The 
petitioner does not deny that some war powers are lodged 
in the President. However, the petitioner contends that 
a conflict of the magnitude of Vietnam is not within 
those powers but is a war which only Congress may 
constitutionally commit ns to. Starting with the premise 
that only Congress can declare war, it is our position that 
the narrow Presidential war powers do not authorize 
him to conduct the present level of armed combat.

A. N either by its actions nor by its words has Congress 
exercised  its so le  prerogative to com m it the n ation’s 
arm ed forces to a war such as is b eing  conducted in  
the instant case.

The Gulf of Tonkin Resolution, 78 Stat. 384 (1964), is 
not the equivalent of a congressional declaration of war, 
nor does it authorize the present conduct of the Executive 
in Vietnam. The Gulf of Tonkin Resolution, supra, 
provides in pertinent p a rt:



15

. . . the Congress approves and supports the de­
termination of the President as Commander-in- 
Chief, to take all necessary measures to repel 
any armed attack against the forces of the United 
States and to prevent further aggression. . . . 
Consonant with the Constitution of the United 
States and the Charter of the United Nations 
and in accordance with its obligations under the 
Southeast Asia Collective Defense Treaty, the 
United States is, therefore, prepared as the Presi­
dent determines, to take all necessary steps, in­
cluding the use of armed force, to assist any mem­
ber or protocol state of the Southeast Asia Col­
lective Defense Treaty requesting assistance in 
defense of its freedom.

By its very terms, the Resolution refutes the notion 
that it is a declaration of an unlimited war. In Section 
1, it speaks to the problem of attacks on United States 
destroyers and authorizes the President to repel these 
attacks and to prevent their future occurrence. Section 
2 authorizes the use of armed force to aid South Vietnam, 
but only if that aid is “consonant with the Constitution.” 
The Resolution is not, by its terms, a declaration of 
war and does not delegate to the President all of Con­
gress’ power to declare war, since such a delegation would 
be patently unconstitutional and not therefore “con­
sonant with the constitution.” Panama Refining Co. v. 
Ryan, 293 U.S. 388 (1935); Schechter Poultry Corp. v. 
United States, 295 U.S. 495 (1935); United States v. 
Robel, 389 U.S. 258, 275 (1967). If Congress has delegated 
away part of its Avar poAAmrs in the Gulf of Tonkin Resolu­
tion, supra, it is essential to examine the legislative his­
tone surrounding its passage to determine A\rhat limits 
Congress intended to set on its delegation to the Presi­
dent. Levine v. O’Connell, 275 App. Drv. 217, 88 N.Y.S. 
2d 672 (1949), aff’d. 300 N.Y. 658 (1950).

The President’s initial message to Congress in support 
of the Resolution said:



16

“As I have repeatedly made clear the United 
States intends no rashness and seeks no wider war.” 
112 Cong. Rec. 18132 (1964).*

Senator Fullbright, who was instrumental in sponsoring 
the Resolution in the Senate and who has subsequently 
become the war’s harshest Senate critic, continually de­
clared in answer to questions that the Resolution did 
not contemplate any expansion of the war. For example, 
in response to a question by Senator Brewster about “the 
landing of large American armies in Vietnam or China,” 
112 Cong. Rec. 18403, Senator Fullbright responded, 
“There is nothing in the resolution, as I read it, that 
contemplates it. I agree with the Senator that that 
is the last thing we would want to do.” 112 Cong. Rec. 
18403. Later in the debate, Senator Fullbright, in speak­
ing for the Foreign Relations Committee, stated that 
everyone he had heard agreed that the United States 
must not become involved in an Asian land war and 
that the purpose of the Resolution was to deter the 
North Vietnamese from spreading the war. The Senator 
admitted that the language of the Resolution would not 
prevent the President from escalating the war, but he 
Indicated that this was not the intent of Congress. 112 
Cong. Rec. 18403. Senator Morton stressed the fact that 
the purpose of the Resolution was to prevent the United 
States from landing vast armies on the Asian continent. 
112 Cong. Rec. 18404. Senator Nelson stated that the 
Resolution was not to authorize a direct land confronta­
tion by the American Army in Vietnam. 112 Cong. 
Rec. 18407. Senator Stennis said that the intent of the 
Resolution was to avoid full-scale war. 112 Cong. Rec. 
18415. Senator Church emphasized that the policy of the 
United States was not to expand the war. 112 Cong, 
Rec. 18415. Senator Randolph stated that the course of

•Date hereinafter omitted.



17

action authorized by the resolution did not involve the 
danger of unlimited hostile activity. 112 Cong. Rec. 
18419.

Senator Nelson even offered an amendment to the 
Resolution in the course of the debates on it. 112 Cong. 
Rec. 18459. The purpose of the amendment was to 
make it even more clear that the mission in South Vietnam 
was to be confined to assistance and advice to the South 
Vietnamese. Senator Fullbright said that the amend­
ment accurately reflected the thinking of the President, 
the Senators, and the Foreign Relations Committee; and 
he rejected the amendment on the sole ground that its 
inclusion would delay the Joint Resolution since the 
PXouse had already passed the version before the Senate.

The debate over the Resolution in the House of Repre­
sentatives is an even clearer indication of what was in­
tended by the Resolution. Congressman Morgan stated 
that the Resolution was “definitely not an advance decla­
ration of war. The Committee has been assured by the 
Secretary of State that the Constitutional power of 
Congress in this respect will continue to be scrupulously 
observed.” 112 Cong. Rec. 18539. Congressman Adair 
said that Congress was not abdicating its power to 
declare war, that it was the attitude of the Executive 
that the Resolution was not an advance approval of any 
action the Executive may see fit to take in the future. 
112 Cong. Rec. 18543. Congressmen Gross and Fascell 
stated that the Resolution was not a declaration of war. 
112 Cong. Rec. 18549, 19576.

The Congressional intent that emerges from the debate 
on the Gulf of Tonkin Resolution indicates that the 
Senators and Representatives voting for the Resolution 
felt that it wras not a declaration of war and that it 
did not authorize escalation of the hostilities. In light 
of these statements of intent by Congress, it is clear



18

that the Gulf of Tonkin Resolution does not authorize 
the present activities of the Executive in Vietnam.

In support of the contention that Congress has rati­
fied the President’s action by the Gulf of Tonkin Resolu­
tion, supra, the argument has also been made that Con­
gress ratifies the actions of the President by appropriat­
ing money to support the military in Vietnam. Depart­
ment of State, Office of the Legal Advisor, “The Legality 
of the United States Participation in the Defense of 
Vietnam,” 60 A.J.I.L. 565 (1966).2 This boot-strap argu­
ment cannot support the Executive’s action in Vietnam. 
Regardless of whether a Congressman agrees or disagrees 
with the overall action of the President, he cannot deny 
weapons and food to American soldiers fighting in a 
foreign war, even if they are fighting there as a direct 
result of Executive usurpation of Congress’ power to de­
clare war. A vote for an appropriation bill can in no 
sense be deemed a ratification of the executive action in 
Vietnam. If voting for appropriation bills gives the 
President ratification for his acts, then the President has 
unlimited power to declare war. All that a President 
need do to declare such a war is to commit troops to 
a war and then ask for appropriations to prevent their 
annihilation. In fact, this court has specifically held, in 
Greene v. McElroy, 360 U.S. 474 (1959), that where execu­
tive action is of dubious constitutionality it is not sufficient 
to argue that Congress has impliedly ratified the action by 
appropriating money. See also: Ex Parte Endo, 323 U.S. 
283 (1944). As the court made clear at 360 U.S. 507, 
explicit ratification is necessary to insure:

careful and purposeful consideration by those re­
sponsible for enacting and implementing our laws. 
Without explicit action by the lawrmakers, decisions 
of great constitutional import would be relegated

hereinafter cited as State Department Brief, with page ref­
erences being to 60 A. J. I. L. (1966).



19

by default to administrators who, under our system 
of government, are not endowed with authority to 
decide them.

Respondents can point to no congressional actions which 
satisfy this clear requirement of congressional ratification.

B. T he P resident’s pow er as Com m ander-in-Chief is not 
sufficient constitutional authorization  fo r  engaging  
five hundred thousand troops in  an extended  foreign  
war w ithout the required C ongressional authorization.

The executive has argued that the President, as Com­
mander-in-Chief, United States Constitution, Art. II, See. 
2, clause 1, can carry on large-scale warfare. State De­
partment Brief, 579. This argument not only makes the 
military supreme over the civilian authorities (i. e., 
Congress) in the matter of declaring war, but also author­
izes the President to usurp the legislative power of 
Congress. During the Korean War, President Truman, 
under the same rationale as the government would have 
the court accept in this case, seized the steel mills, stating 
that his power as Commander-in-Chief authorized him 
to insure the uninterrupted production of steel for that 
war. But this court refuted his contention in Youngstown 
Sheet and Tube Co. v. Sawyer, 343 IT.S. 579 (1953), say­
ing, at 587,

we cannot with faithfulness to our constitutional 
system hold that the commander-in-chief of the 
armed forces has the ultimate power as such to 
take possession of private property. . . . This is 
a job for the nation’s law-makers, not for its 
military authorities.

Despite the holding of Youngstown Sheet and Tube Co. 
v. Sawyer, supra, the government contends that the past 
history of executive deployment of American armed forces 
under his commander-in-chief powers supports the con­



20

tention that he may fight a large-scale undeclared war.
State Department Brief, 584. On some 125 occasions 
in the past the President has deployed American troops 
without a congressional declaration of war. State De­
partment Brief, 584. With the exception of the Korean 
War, these instances do not provide precedent for stating 
that the President has the power to fight a large-scale 
undeclared war. Under Secretary of State Katzenbach 
calls these precedents “relatively minor uses of force.” 
Hearings Before the Committee on Foreign Relations of 
the United States Senate, 90th Cong. 1st Sess. 81 (1967). 
Such minor uses of force cannot serve as precedent for 
the extensive military operations in Vietnam.

Nor can the Korean War serve as a precedent for 
the legality of the Vietnam war. That action was author­
ized by a resolution of the United Nations Security Coun­
cil as a multi-lateral peacekeeping action. On the other 
hand, even if it is assumed that the Korean War was 
an executive usurpation of the congressional power to 
declare war, it cannot be said that this usurpation is pre­
cedent for subsequent usurpation of the Congress’ war 
power. In Youngstown Sheet and Tube Co. v. Sawyer, 
343 U.S. 579 (1952) the government argued that President 
Truman had the power to seize the steel mills because on 
several occasions other Presidents bad seized private 
businesses in emergency situations. The court rejected 
the argument, stating, at 588,

It is said that other presidents without Con­
gressional authority have taken possession of pri­
vate business enterprises in order to settle labor 
disputes. But even if this be true, Congress has 
not thereby lost its exclusive constitutional author­
ity to make laws necessary and proper to carry 
out the powers vested by the Constitution “in the 
Government of the United States, or any De­
partment of Offices thereof.” (Italics provided.)



21

In short, there is no precedent for the proposition that 
the Constitution allows the President to fight a large-scale 
undeclared war without Congressional approval.

Despite the historical limitations on the Commander-in- 
Chief powers, the executive argues that the inferred 
powers to repel attack justify his action in Vietnam. 
State Department Brief, 565. Sometimes the executive 
must of necessity commit our armed forces before Con­
gress has an opportunity to declare war. The Brig Amy 
Warwick, 2 Black 685 (1863). An example of this was 
President Roosevelt’s forced and immediate response in 
"World "War IT to an armed attack on the United States 
before he asked Congress to declare war on Japan. From 
this incontrovertible fact of political life, the executive ar­
gues that it can carry on a war, regardless of the sudden­
ness of the attack, whenever the executive feels any 
belligerent act on the part of a foreign power requires a 
response. During the past three and one-half years, 
the executive has conducted large-scale military opera­
tions in Vietnam. There has been more than ample 
time during this period for the executive to ask for a 
Congressional declaration of war. Yet, it is the position 
of the executive branch that congressional action is en­
tirely unnecessary. State Department Brief, 583. The 
executive branch argues that the President had the power 
in his sole discretion to escalate the war from the point 
of repelling alleged, and as yet unproven, attacks on 
a destroyer in the Gulf of Tonkin to a point where over 
half of a million men are engaged in military operations 
and where twice as much bomb tonnage has been dropped 
than was dropped on all of America’s enemies in World 
War II. This argument, if accepted, is a complete nulli­
fication of Congress’ power to declare war. The only way 
the Congressional power to declare war is to have any 
meaning is for this court to hold that the President has 
the power to repel sudden armed attacks, but that he



22

must obtain a Congressional declaration of general or 
limited war as soon as possible. This guideline was 
followed by President Roosevelt in World War II, and 
presents a vital check on the power of the President to 
commence an enormous war on the basis of a minor 
international incident. Viewed in this light, the Execu­
tive power to repel attack does not authorize the war in 
Vietnam, since the Executive had and has ample time in 
which to secure a Congressional declaration of war. He 
may not usurp Congress’ ultimate legislative responsibility 
under the Constitution. O’Neal v. United States, 140 F. 2d 
908 (6th Cir., 1944), cert, denied 322 U.S. 729 (1944).

IV.

The unilateral action of the United States in Vietnam 
violates the duties and obligations this country has 
assumed as a member of the United Nations and di­
rectly conflicts with the clear provisions of the SEATO
treaty.3

The United States Constitution, Article VI, Clause 
2, states:

. . . all treaties made . . . under the authority 
of the United States shall be the supreme law of 
the land . . . and the judges in every state shall 
be bound thereby.

This is a clear constitutional mandate to the courts that 
theirs is the duty, not simply the prerogative, to enforce 
the provisions of the treaties to which this country is a 
valid signatory. Certainly, if the courts are bound to 
enforce the provisions of such treaties, they are free to

3South East Asia Collective Defense Treaty, 6 U. S. T. 81, 
T. I. A. S. No. 3170, 209 U. N. T. S. 28 (1955), hereinafter 
cited as SEATO treaty.



interpret and apply the provisions thereof. Petitioner’s 
contention is that past and present participation of the 
United States Armed Forces in Vietnam is in direct viola­
tion of this country’s treaties. It is the duty of this court 
to weigh the legality of the conduct of the United States 
Government in light of our treaties, and in addition, to 
adjudicate personal rights affected thereby. San Lorenzo 
Title and Improvement Co. v. Caples, 48 S.W. 2d 329 
(Texas 1932).

A. T he present war has been  entered into and conducted  
in  direct contravention o f A rticle 3 3 ( 1 )  o f the U nited  

N ations Charter as it d isrupted “ a peacefu l so lu tion ”  
under the Geneva Accords.

The United Nations Charter, June 26, 1945, 59 Stat. 1031 
(1945), T. S. No. 993, Article 33(1), states:

the parties to any dispute, the continuance of which 
is likely to endanger the maintenance of inter­
national peace and security, shall first of all, 
seek a solution by negotiation.

The Geneva: Accords'' was a “peaceful solution” worked 
out by the main parties in the struggle of the Viet Minh 
against French colonial rule. A direct sabotage of the 
Geneva Accords’ peaceful solution was engineered by 
the United States’ refusal to abide by the election pro­
visions agreed upon by the parties to the Accords in 
1954. When the United States began to assume the role 
of the French in Southeast Asia, and the Viet Minh 
began to resist, the United States did not abide by 
Article 33(1) of the United Nations Charter, supra, by 
submitting the dispute to the Security Counsel or by

iGeneva Conference on the Problem of Restoring Peace in 
Indo-China, Great Britain, Misc. No. 20 (1954); (Cmd. 9239); 
60 A. J. I. L. 629 (1966), hereinafter cited as Geneva Accords.



24

attempting to seek a solution by negotiation. The basie 
purpose of Article 33(1) is to limit the use of unilateral 
force by unilateral decision when there is time to go 
to the Security Council. Not only did the United States 
undermine an existing joeaceful “solution by negotia­
tion” in Vietnam, but it compounded its sins by refusing 
to submit the dispute arising out of the sabotage of the 
Geneva Accords to the Council until fully two years 
after the major portion of the conflict began and nearly 
four years after we had undertaken a major commitment 
to the Saigon regime’s effort to remain in power in the 
face of growing and eminently more potentially suc­
cessful challenges to their assumed authority. By 1962, 
fully 10,000 United States troops were actually involved 
in the effort to combat this growing insurgency, yet 
the United States did not call for United Nations review 
until 1966. This delay on the part of the United States 
is in direct contravention of our duties and obligations 
under the Charter of the United Nations, which Article 
VI, Clause 2 of the United States Constitution, makes the 
“supreme law of the land.”

B. The Charter’s exceptional authorization  o f collective  
and individual self-defense is unavailable as a ju sti­
fication fo r  U nited States in tervention  in  V ietnam .

The Executive generally claims as a defense to its partic­
ipation in Vietnam authorization under the United 
Nations Charter, Article 51. State Department Brief, 
567. Article 51 states:

Nothing in the present Charter shall impair the 
inherent right of individual or collective self- 
defense if an armed attack occurs against a mem­
ber of the United Nations . . .

The facts overwhelmingly point to a patent fabrication on 
this country’s part in characterizing the action of the



25

Viet Cong insurgents and their North Vietnamese counter­
parts as an “armed attack” within the obvious meaning 
of Article 51. South Vietnam is not a “member of the 
United Nations” and even its characterization as a “na­
tion” may be validly questioned. Fully two-thirds of 
its present land area was controled by the Viet Minh 
under Ho Chi Minh in 1954—who, for the most part, 
withdrew to await elections in accordance with the dic­
tates of the Geneva Conference of 1954. LaCourtre, 
The Two Vietnams, pp. 290-358 (1966). They left be­
hind certain of their forces as a practical matter because 
they were suspicious (and justifiably so) of Saigon’s 
intentions, and also to counter the almost immediate sup­
planting of the French military and economic effort by 
that of the United States. Fall, Vietnam Witness 1953- 
1966 (1966). The Executive itself admits that from 1957 
until 1962 there was a gradual infiltration of approxi­
mately “23,000 armed and unarmed guerrillas” from North 
Vietnam to the South. State Department Brief, 576. 
The Executive chooses to term this gradual infiltration 
of South Vietnam by guerrillas, largely South Vietnamese 
in origin (State Department Brief, 576), as an “armed 
attack” triggering the right of collective self-defense. 
This definition of “armed attack” hardly squares with 
what the United Nations defined it to be (Unanimous vote 
of the General Assembly of the United Nations, 1st 
Sess.. Resolution 95[1]):

Self-defense is permissible only when the necessity 
for action is instant, overwhelming, and leaving 
no choice of means and no moment for delibera­
tion.

United States participation in the unhappy state of affairs 
in Vietnam began in 1954. It seems logical that the very 
party that had ended one hundred years of colonial dom­
ination by a foreign power could be expected to guar­
antee for itself, by leaving behind certain elements of its



26

forces, participation in the affairs of the country they had 
freed after many years of bloody struggle without being, 
of necessity, labeled an armed attacker. Majority Leader 
Mansfield, Report to the Senate, 90th Cong., 1st Sess. 
(1967), has made it clear that the infiltration of signif­
icant numbers of men and material from North Vietnam 
began only after massive United States’ intervention in 
South Vietnam and the bombing of North Vietnamese 
territory itself. Self-defense is legally permissible only 
in response to particularly grave, immediate emergencies. 
Any such claim to the right of self-defense is unavailable 
to South Vietnam and, a fortiori, to the United States 
acting as any ally in collective self-defense with South 
Vietnam.

C. T he U nited States has violated  the exp licit directives of 
the SEATO Treaty under w hich it purports to justify  
its unilateral in tervention.

The Executive has argued that the President may com­
mit the nation to war in order to fulfill the treaty obliga­
tions of the United States. State Department Brief, 584. 
The argument is that the SEATO Treaty provides that 
an armed attack against one of the parties is a threat to 
all, and that each signatory may act to meet the threat in 
accordance with its “constitutional processes.” State 
Department Brief, 585. Executive action has shown 
that the executive considers the term “constitutional 
processes” to mean that the United States can fight a 
full-scale war in Southeast Asia when the President, in 
his sole discretion, decides to fight. This argument 
is faulty on two grounds. First, a treaty cannot order 
what the Constitution forbids, Reid v. Covert, 354 U.S. 1 
(1957); United States v. Minnesota, 270 U.S. 181, 207- 
208 (1926); and second, the Constitution provides that 
Congress, not the President, shall make the final decision 
to go to war. Congress must therefore decide whether



27

particular treaty obligations require entry into a war. 
When the SEATO Treaty says that resistance is to be 
effected according to the “constitutional processes” of 
the signatories, United States Constitutional law dic­
tates that Congress must make the decision. If the 
President makes the decision, and the proper inter­
pretation of the treaty is that this is permissible, then 
the treaty violates the constitution and cannot be fol­
lowed. If the proper interpretation of the SEATO  treaty 
is that Congress must decide when to enter a war, then 
the Executive action so far in Vietnam violates the 
SEATO  treaty because it was not done in accordance 
with the “constitutional processes” of the United States. 
In either case, the treaty obligations of the United 
States do not authorize the present Executive action in 
Vietnam. The fallacy of the government’s position, which 
in effect states that there may be a declaration of war by 
treaty, becomes even more obvious when it is considered 
in light of the fact that the Constitution requires only 
executive and Senate action in binding this country to 
a treaty obligation, United States Constitution, Article 
2, Clause 2, Section 2, whereas the concurrence of both 
houses of Congress is necessary in order to ultimately 
commit the nation to war. United States Constitution, 
Article 1, Section 8, Clause 11.

Assuming arguendo that the government’s contention 
that there was an armed attack is correct, then it must 
justify its intervention under Article IV (1) of the 
SEATO Treaty. This deals with the situation when there 
is “aggression by means of armed attack” and provides 
that “ [mjeasures taken under this paragraph shall be 
immediately reported to the Security Council of the 
United Nations.” (Italics added.) The United States 
intervention in Vietnam began as early as 1954, and yet 
our government did not report the situation to the 
United Nations until recently. Our government ignored



28

the letter and the spirit of paragraph 1 of Article IV, 
and its actions cannot be justified thereunder.

A more logical analysis of the Vietnam conflict and more 
in conformity with the government’s admission of a 
gradual infiltration, supra, would bring the United States 
intervention within paragraph 2 of Article IV which 
provides tha t:

“If in the opinion of any of the Parties, the 
inviolability or the integrity of the territory or 
the sovereignty or political independence of any 
Party in the treaty areas . . .  is threatened in any 
way other than by armed attach or is affected or 
threatened by any fact or situation which might 
endanger the peace of the area, the Parties shall 
consult immediately in order to agree on the 
measures which should be taken for the common 
defense. (Italics added.)

This provision requires that the parties make a col­
lective determination prior to taking any action. If 
this provision, rather than paragraph 1 of Article IV, 
does not govern the Vietnam conflict, it is difficult to 
imagine what purpose it serves. If it does cover the 
Vietnam war, the United States intervention is in con­
travention thereof, as there was no consultation among 
the parties and there was no collective determination as 
to the measures which should be taken.

No matter which provision governs, paragraph 1 or 
paragraph 2 of Article IV, the United States flagrantly 
violated its terms. Though charged with the faithful 
execution of the law of the land, the President has ignored 
the clear dictates of our treaties, and in so doing, has 
engaged the nation in an illegal war. While it is 
true that a later inconsistent statute may modify a treaty, 
Hackworth, Digest of International Law 185, 186 (1943), 
the Tonkin Gulf Resolution, 78 Stat. 384 (1964), did not 
have this effect. A treaty will not be deemed modified



29

or abrogated by a later act of Congress unless such pur­
pose on the jjart of Congress is clear. Cook v. United 
States, 288 U.S. 102, 120 (1933). The Tonkin Gulf 
Eesolution explicitly provides that the President’s actions 
shall be “ [cjonsonant with the Constitution of the United 
States and the Charter of the United Nations and in 
accordance with its obligations under the Southeast 
Asia Collective Defense Treaty . . .” In addition to show­
ing that Congress did not intend, to modify any of our 
treaty commitments, this provision also demonstrates that 
the President has far exceeded any powers delegated 
to him by the Congress.

V .

The United States, as a member of the United 
Nations, and of the civilized world community, is bound 
by international law to refrain from disturbing efforts 
among other nations and peoples to peacefully settle
their differences.

Where there is no treaty that validly supersedes it, or 
where there is no controlling executive or legislative act 
or judicial decision, resort must be had to international 
law, and the customs and practices of civilized nations. 
United States v. Macintosh, 283 U.S. 605 (1931). As this 
court said in The Hub ana, 175 U.S. 677 (1900) at 700:

International law is part of the law of the United 
States and must be ascertained and administered 
by the courts of justice of appropriate jurisdiction 
as often as questions of right depending upon it 
are duly presented for their determination.



30

A. T he war in  V ietnam  is a civil war, and n o  right o f  
in tervention  on  the part o f the U nited States exists on  
behalf o f one or the other o f the factions involved  
therein.

From 1946 onward, immediately following the failure 
of France at the end of World War II to recognize and 
provide for basic nationalistic sentiment in Indo-China, 
the Viet Minh under the leadership of Ho Chi Minh 
began its struggle to oust the French from colonial 
control of Southeast Asia. This effort culminated in 
success in 1954 at Dien Bein Phu. The Geneva Accords 
provided for the establishment of a national government 
by free elections two years hence in 1956. This was to 
provide for a cooling-off period for the antagonistic 
elements among the indigenous people of Vietnam itself, 
and a suitable period for the withdrawal of foreign 
troops. When the formula of Geneva failed to pro­
duce this single governmental entity, due to the outside 
sabotage of the election provisions by the United States 
which had immediately supplanted the defeated French 
influence in Vietnam, the insurgency began in the South. 
This insurgency was aided and fostered by both Southern 
and Northern elements which had previously withdrawn to 
the North in accordance with the dictates of the Geneva 
Conference. That this was then and now is a civil war 
in nature, is also shown by the following facts:

1. The Viet Minh fully controlled two-thirds of the
total land area of the whole of Vietnam in 1954, 
at the conclusion of the French War. LaCourtre, 
The Two Vietnams, pp. 290-358 (1966);

2. The United States has claimed that the infiltration
of 40,000 armed guerrillas constituted the basis 
for its intervention, and yet admits that these 
troops were Southern in origin. State Department 
Brief, 566;



31

3. The Geneva Conference recognized all Vietnam as 
on entity, and observers at the time of the begin­
ning of the conflict acknowledged that. Ho Chi 
Minh was indeed the national leader of all of 
Vietnam and was assured of popular election, if 
such elections were held at the time. Fall, Vietnam 
Witness 1953-1966 (1966).

The constant rhetoric of United States policy makers in 
characterizing the conflict in Vietnam as being precipitated 
by an invasion from the North is not accurate. By the 
terms of the Geneva Accords, there was no legal en­
tity as a nation from which an armed invasion could 
be launched, and there was no legal entity as a nation 
invaded. Both areas were deemed one state. It is 
also significant that North Vietnam has never recognized 
the South as a state and considers its role as simply 
one of attempted forceful reunion. There is absolutely 
no precedent for the United States to massively inter­
vene in behalf of one side of a civil war. I t is significant 
to note that in the Spanish Civil War, neither Germany 
and Italy on behalf of Franco, nor the Soviet Union on 
behalf on the Loyalists, claimed a right to bomb each 
other’s territory when they intervened, nor did they 
claim the right to intervene massive numbers of their 
own forces. Padelford, International Law and Diplomacy 
in the Spanish Civil War (1939). It has been shown 
that the absurdity of our claim of legal intervention could 
be carried to the extent that North Vietnam in turn could 
correspondingly claim, the right to bomb the territory of 
the United States. Falk, Vietnam Critique, 75 Yale 
L.J. 1134 (1966).

Finally, the Korean conflict provides no precedent 
for our action in South Vietnam. Korea was indeed an 
armed attack by an independent country upon the ter­
ritory of another independent country, and internationally 
recognized as such. The United States acted after going



32

before the Security Council of the United Nations; and 
there was a total of thirty-two nations involved fighting 
to repel aggression under United Nations authorization. 
The United States never claimed any right of “collective’ 
self-defense” in Korea, but acted in accordance with 
international law under United Nations auspices. The 
token aid given in South Vietnam by “allies” of the 
United States (under intense United States pressure) 
can hardly be analogized to the participation of foreign 
nations in the Korean conflict. McDougal and Associates, 
Studies in World Public Order, 718-760 (1960).

B. U nited States participation is a direct sabotage of the  
Geneva Accords, w hich w ere arrived at in  accordance  
with the “ P eacefu l Settlem ent” provisions o f A rticle 31  
of the U nited N ations Charter.

The American military presence in South Vietnam 
from its inception until the present time is in direct 
violation of the Geneva Conference and of the plan 
for “peaceful settlement” of the conflict between indigenous 
forces of the Vietnamese nation which was devised by that 
conference in 1954.

As previously noted, the defeat of the French after 
eight years of war left the Viet Minh occupying the entire 
area North of the thirteenth parallel. Under the terms 
of the Geneva Accords, the Viet Minh agreed to withdraw 
above the seventeenth parallel in exchange for the with­
drawal of all foreign troops. Geneva Accords, Chapter 
II, Article 12, pp. 631-32. Within two years elections 
were to be held under international supervision to unify 
the country so that the temporary division of Vietnam 
into a North and South zone would end by July of 1956. 
Geneva Accords, Final Declaration, pp. 643-44. The 
extent of control over the land area that the forces of 
Ho Chi Minh exercised at that time, is shown by the



33

plan for withdrawal and the stipulation of day by which 
all forces were to withdraw to the respective territories, 
as per the Geneva Accords, supra, Article 15(2):

The withdrawals and transfers shall be effected 
in the following order and within the following 
periods (from the date of the entry into force of 
the present Agreement):

Forces of French Union
Hanoi perimeter __________ __ _______ 80 days
Haiduong perimeter ................... ..............  100 days
Haiphong perimeter ________________ 300 days

Forces of the People’s Army of Viet Nam
Ham Tan and Xuyenmoc provisional as­

sembly area --------------------- ----------  80 days
Central Viet Nam provisional assembly

area first installment ...................... ..... . 80 days
Plaine des Jones provisional assembly

area .......................................... ............... 100 days
Central Viet Nam provisional assembly

area second installment „......... ........... 100 days
Pointe Caman provisional assembly area 200 days 
Central Viet Nam provisional assembly 

area last installment ____________ .... 300 days

From the above it is obvious that the French colonial 
power at the time and its small contingent of Vietnamese 
occupied only the major port cities, insofar as land area, 
and the Viet Minh was the only other significant military 
presence in the country. It is further obvious that Ho 
Chi Minh had three hundred days to withdraw his forces 
from the South. It is often claimed by the United States 
that he failed to withdraw his troops within the time 
sequence allowed. This fact is used by the United 
States to claim a material breach of the Geneva Accords. 
State Department Brief, 577-78. However, the Fourth 
Interim Report of the International Control Commission,



34

Vietnam No. 3, Cmd. No. 9654 (1955), shows that the 
Hanoi interim government generally kept its agreement 
to withdraw its troops and to eschew violence. It is 
intimated in that report that Hanoi was so sure of 
winning the agreed upon elections that it did not wish 
to risk alienating the people in the South upon whom 
Hanoi depended for its election success. But beginning 
in September, 1954, the South Vietnamese temporary 
government and the United States made clear their 
intention to sabotage the settlement engineered in Geneva 
less than one and half months before.

The Final Declaration of the Geneva Accords, 643- 
44 provided:
No military base under the control of a foreign 
state may be established in the re-grouping zones of 
the two parties, the zones . . . shall not constitute 
part of any military alliance . . .
The military demarcation line is provisional and 
should not in any way be interpreted as constitut­
ing a political or territorial boundary.
General elections shall be held in July, 1956 under 
the supervision of an international commission 
composed of representatives of the member states 
of the International commission . . . consultations 
will be held on this subject between the competent 
representative authorities of the two zones from the 
20th of July, 1955 onwards.

This declaration forbids foreign military bases, states 
that the North-South demarcation line is completely 
arbitrary, forbids any political interpretation of the boun­
dary, and provides for elections to unite the country 
under one head. Although the United States Declaration 
on Indo-China, 31 Dept, of State Bulletin 162 (1954), 
issued in lieu of our actually signing the Geneva Accords, 
seemed to indicate that the United States would abide by 
the accords:



35

the Government of the United States being resolved 
to the strengthening of peace . . . declares . . .
(i) that it will refrain from the threat or use of 
force to disturb them.

The SEATO treaty made it immediately clear that the 
above quoted declaration was worth no more than the 
paper it was written on. Under the protocol to the 
SEATO treaty, appended to the main treaty, the parties 
designated

“For the purposes of Article 4 . . . the free 
territory under the jurisdiction of the State of 
Vietnam . . . ”

Less than one and a half months after the Geneva Accords 
were signed in September, 1954, this protocol, made it 
abundantly clear that the United States did not intend 
to abide by the spirit of the Geneva Accords which, as 
shown above, called for free elections and the non- 
recognition of territorial division in Vietnam itself. The 
SEATO treaty further established that the United States 
considered the “free territory of the State of Vietnam” 
as coming within the alliance’s protection, by stating 
in Article 4, Clause 2, of that treaty that:

if in the opinion of the parties, the inviolability 
or the independence of the territory, or the sover­
eignty, or political independence of any state or 
territory to which the provisions of Paragraph 1 of 
this article apply, is threatened in any way other 
than by armed attack, the parties shall consult im­
mediately to agree on measures to be taken.

Article 4, Clause 3, of the protocol continues:
each party recognizes that aggression by means 
of armed attack against any state or territory which 
the parties may hereinafter designate would en­
danger its own peace and safety and agrees it 
will . . . act to meet the common danger in ac­
cordance with its own constitutional processes.



36

Petitioner contends that this blatant placing of the 
“State of Vietnam” within the military protective um­
brella of the United States one and half months after 
the Geneva Accords were signed was in clear violation 
of the spirit of Geneva. It can hardly be argued that 
Ho Chi Minh and the Viet Minh, after twenty years 
of bloody struggle, were not entitled and reasonably 
expected to attempt to guard their hard-won interests, 
by attempting to leave behind in the face of these 
American actions small cadres to, if necessary, enforce 
the agreements they fought so hard to win at Geneva. 
The international law principle that a material breach 
of an agreement by one party entitles the other at 
least to withhold compliance with an equivalent, corre­
sponding and related provision until the defaulting party 
is prepared to honor its obligations is well known. 2 
Oppenheim, International Law 136, 137 (Seventh Edition). 
Lauterpacht (1955); 2 Hyde, International Law 1660, 
1669 (2nd ed. 1947).

CONCLUSION.

It is submitted, as Justice Stewart noted in his dissent 
in Mora v. McNamara, 389 U.S. 934 (1967), that this 
court

“cannot make these problems go away by simply 
refusing to hear the case.”

This is particularly appropriate in the present ease 
since the court has granted certiorari. The court should 
not now try to make the problem “go away” by refusing to 
consider the merits by invoking the fading political 
question doctrine. The petitioner in this proceeding 
has standing to sue, and the tests of justiciability has 
been met. Finally, the merits of the case are clearly in 
petitioner’s favor. International law, treaties to which



37

the United States in a signatory, and the Constitution it­
self all indicate that the war in Vietnam is illegal.

The other branches of the government seem unable to 
extricate themselves from the vise of Vietnam—a task 
they openly admit they wish they could accomplish. The 
court now has the opportunity and, as the petitioner 
contends, the duty to declare the Vietnam war illegal, 
and to order the responsible branches of government 
to effectuate an exit, with all deliberate speed. By such 
a declaration, the petitioner’s personal right not to be 
forced to fight in an illegal war as well as the nation’s 
duty not to engage in one will be simultaneously resolved.

For these reasons, it is respectfully submitted that this 
court should reverse the decision of the lower court and 
grant the petitioner’s request for a declaratory judgment 
that the Vietnam war is illegal, and for an injunction 
against the Secretaries of Defense and of the Army from 
ordering him to participate therein.

Respectfully submitted,
R obert L. M iller  
R ichard C. M it c h e l l  
J ames T. W awro 

Attorneys for Petitioner, 
George Ivan Joseph





39

Appendix A.

The United States Constitution, Article 1, Section 4, Clause 
1 states:

The Times, Places and Manner of holding Elec­
tions for Senators and Representatives, shall be 
prescribed in each State by the Legislature thereof; 
but the Congress may at any time by Law make 
or alter such Regulations, except as to the Places 
of choosing Senators.

The United States Constitution, Article 1, Section 8, 
Clause 11 states in pertinent p a rt:

The Congress shall have power . . . to declare 
war.

The United States Constitution, Article II, Section 2, 
Clause 1, states in pertinent part:

The President shall be Commander in Chief of 
the Army and Navy of the United States . . .

The United States Constitution, Article VI, Clause 2, 
states in pertinent part:

. . .  all treaties made, or which shall be made, 
under the authority of the United States, shall be 
the supreme Law of the Land; and the Judges 
in ever State shall be bound thereby . . .

The United States Constitution, Amendment Y, states in 
pertinent part:



40

No person shall be . . . deprived of life, liberty, 
or property without due process of law . . .

The Geneva Conference on the Problem of Restoring 
Peace in Indo-China, Britain Mise. #  20 (1954) (cmd. 
9239); reproduced from 60 A.J.I.L. 629 (1966) provides 
in pertinent part:

4. The Conference takes note of the clause in 
the Agreement on the cessation of hostilities in 
Viet Nam prohibiting the introduction into Viet 
Nam of foreign troops and military personnel as 
well as of all kinds of arms and munitions.

5. The Conference takes note of the clauses in 
the Agreement on the cessation of hostilities in 
Viet Nam to the effect that no military base under 
the control of a foreign state may be established in 
the regrouping zones of the two parties, the latter 
having the obligation to see that the zones allotted 
to them shall not constitute part of any military 
alliance and shall not be utilised for the resumption 
of hostilities or in the service of an aggressive 
policy.

6. The Conference recognizes that the essential 
purpose of the Agreement relating to Viet Nam is 
to settle military questions with a view to ending 
hostilities and that the military demarcation line 
is provisional and should not in any way be inter­
preted as constituting a political or territorial 
boundary. The Conference expresses its conviction 
that the execution of the provisions set out in 
the present declaration and in the Agreement on 
the cessation of hostilities creates the necessary 
basis for the achievement in the near future of a 
political settlement in Viet Nam.



41

7. The Conference declares that, so far as Viet 
Nam is concerned, the settlement of political prob­
lems, effected on the basis of respect for the 
principles of independence, unity and territorial 
integrity, shall permit the Vietnamese people to 
enjoy the fundamental freedoms, guaranteed by 
democratic institutions established as a result of 
free general elections by secret ballot. In order to 
ensure that sufficient progress in the restoration 
of peace has been made, and that all the neces­
sary conditions obtain for free expression of the 
national will, general elections shall be held in July 
1956, under the supervision of an international 
commission composed of representatives of the 
member states of the International Supervisory 
Commission, referred to in the Agreement of the 
cessation of hostilities. Consultations will be held 
on this subject between the competent representative 
authorities of the two zones from 20th July, 1955, 
onwards.

The United States Declaration on Indo-China, 31 De­
partment of State Bulletin 162 (1954) states in pertinent 
p a rt:

The Government of the United States being re­
solved to devote its effort to the strengthening of 
peace in accordance with the principles and pur­
poses of the United Nations takes note of the 
agreements concluded at Geneva . . . and declares 
with regard to the aforesaid agreements and para­
graphs that (i) it will refrain from the threat or the 
use of force to disturb them, in accordance with 
Article 2 (4) of the Charter of the United Nations 
dealing with the obligation of members to refrain in



42

their international relations from the threat or 
use of force; and (ii) it would view any renewal 
of the aggression in violation of the aforesaid agree­
ments with grave concern and as seriously threaten­
ing international peace and security.

The Southeast Asia Collective Defense Treaty, 6 U.S.T. 
81, T.I.A.S. #3170; 209 U.N. Treaty Series 28, provides in 
pertinent part:

Article IV

1. Each party recognizes that aggression by 
means of armed attack in the treaty area against 
any of the parties or against any state or territory 
which tlie parties by unanimous agreement may 
hereafter designate, would endanger its own peace 
and safety, and agrees that it will in that event act 
to meet the common danger in accordance with 
its constitutional processes. Measures taken under 
this paragraph shall he immediately reported, to 
the Security Council of the United Nations.

2. If, in the opinion of any of the parties, the 
inviolability or the integrity of the territory or 
the sovereignty or political independence of any 
party in the treaty area or of any other state or 
territory to which the provisions of paragraph 1 of 
this article from time to time apply is threat­
ened in any way other than by armed attack or is 
affected or threatened by any fact or situation 
which might endanger the peace of the area, the 
Parties shall consult immediately in order to agree 
on the measures which should he taken for the 
common defense.



43

Article VI

Tliis Treaty does not affect and shall not be 
interpreted as affecting in any way the rights and 
obligations of any of the parties under the Charter 
of the United Nations.

The Parties to the Southeast Asia Collective 
Defense Treaty unanimously designate for the 
purposes of Article IV of the Treaty the States 
of Cambodia and Laos and the free territory under 
the jurisdiction of the State of Vietnam.

The United Nations Charter, 59 Stat. 1031 (1945), pro­
vides in pertinent part:

Article 33

1. The parties to any dispute, the continuance of 
which is likely to endanger the maintenance of 
international peace and security, shall, first of 
all, seek a solution by negotiation, enquiry, media­
tion, conciliation, arbitration, judicial settlement, 
resort to regional agencies or arrangements, or 
other peaceful means of their own choice.

Article 51

Nothing in the present Charter shall impair the 
inherent right of individual or collective self-defense 
if an armed attack occurs against a Member of 
the United Nations, until the Security Council has 
taken the measures necessary to maintain inter­
national peace and security. Measures taken by



44

Members in the exercise of this right of self-defense 
shall be immediately reported to the Security Coun­
cil and shall not in any way affect the authority 
and responsibility of the Security Council under 
the present Charter to take at any time such action 
as it deems necessary in order to maintain or 
restore international peace and security.

The Joint Resolution of Congress, August 10, 1964, 78
Stat. 384 (The Tonkin Bay Resolution) provides:

Whereas naval units of the Communist regime in 
Vietnam, in violation of the principles of the 
Charter of the United Nations and of international 
law, have deliberately and repeatedly attacked 
United States naval vessels lawfully present in 
international waters, and have thereby created a 
serious threat to international peace; and

Whereas these attacks are part of a deliberate 
and systematic campaign of aggression that the 
Communist regime in North Vietnam has been 
waging against its neighbors and the nations joined 
with them in the collective defense of their free­
dom; and

Whereas the United States is assisting the people 
of southeast Asia to protect their freedom and has 
no territorial, military or political ambitions in that 
area, but desires only that these peoples should be 
left in peace to work out their own destinies in their 
own way: Now, therefore, be it 
Resolved by the Senate and House of Represen­
tatives of the United States of America in Con­
gress assembled. That the Congress approves and 
supports the determination of the President, as 
Commander in Chief, to take all necessary measures



45

to repel any armed attack against the forces of the 
United States and to prevent farther aggression.

Sec. 2. The United States regards as vital to 
its national interest and to world peace the main­
tenance of international peace and security in 
southeast Asia. Consonant with the Constitution 
of the United States and the Charter of the United 
Nations and in accordance with its obligations under 
the Southeast Asia Collective Defense Treaty, the 
United States is, therefore, prepared, as the Presi­
dent determines, to take all necessary steps, in­
cluding the use of armed force, to assist any mem­
ber or protocol state of the Southeast Asia Col­
lective Defense Treaty requesting assistance in de­
fense of its freedom.

Sec. 3. This resolution shall expire when the 
President shall determine that the peace and secur­
ity of the area is reasonably assured by inter­
national conditions created by action of the United 
Nations or otherwise, except that it may be ter­
minated earlier by concurrent resolution of the 
Congress.

NOTE: Italics, wherever added, are ours.



46

Appendix B,

We have counted the number of words in our brief 
and certify that our brief is 6,977 words in length, within 
the limit set by the 1968 Exiles of the National Moot 
Court Competition.

R obert L. M iller  
R ichard C. M it c h e l l  
J ames T. AVawro