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Suing to Stop the War By: Henry Mark Holzer
FrontPageMagazine.com | Thursday, December 12, 2002


In the Sixties, the anti-war Left – in an effort to prevent the United States from trying to save South Vietnam from the scourge of Communism – demonstrated, propagandized, subverted, bombed – and sued.  It was a naked attempt to use our judicial system in order to stop Congress from funding, and the Commander-in-Chief from fighting, the Vietnam War.

Draftees tried to challenge the legality of the war.  Citizens argued that forcing them to pay “war taxes” unconstitutionally violated their right of conscience.  Others claimed that the draft (without which the war could not have been fought) violated international law, especially the Nuremberg principles.  Some contended that the draft constituted involuntary servitude proscribed by the Thirteenth Amendment. And a Congresswoman even tried to have a federal court in Brooklyn issue an injunction against bombing in Indochina!

All of these Left-inspired anti-war lawsuits, and many others like them, failed – mostly because the courts held them “non-justiciable ‘political questions’,” and thus violative of one of the three most fundamental constitutional principles: separation of powers.  In essence, a non-justiciable  (but misnomered) “political question” is an issue within the province not of the judiciary under Article III of the Constitution, but rather the business either of Congress under Article I or the Executive/Commander-in-Chief under Article II.  Another example of non-justiciability is where the plaintiff has no individualized interest in the issue he tries to litigate (i.e., he lacks “standing to sue”). 

A good example of non-justiciabiity from the Vietnam War era is the case of United States v. Sisson, where a federal judge dismissed a challenge to the Vietnam War’s constitutionality because it involved “just the sort of evidence, policy considerations, and constitutional principles which elude the normal processes of the judiciary and which are far more suitable for determination by coordinate branches of the government.” 

After Vietnam, the Left continued trying to use the courts to further its opposition to the United States using military force to further its interests around the world.  But the Left’s cases failed on grounds of non-justiciability.

· A gaggle of Congressmen sued over the legality of providing military aid to El Salvador (Crockett v. Reagan).  Held: a political question, the court being unequipped to make military and/or foreign policy determinations.

· English ladies, joined by American Congressmen Ron Dellums and Ted Weiss, sued to enjoin the deployment of cruise missiles in their town.  (Greenham Women v. Reagan).  Held: a political question, dealing with a subject committed to another branch of government.

· Another group of legislators sued to declare the invasion of Grenada unconstitutional.  (Conyers v. Reagan).  Held: a moot (and thus non-justiciable) question, since the episode had by then ended). 

· Still other Congressmen sued to force the president to file status reports under the War Powers Resolution.  (Lowry v. Reagan).  Held: a political question, the court having no expertise to define “hostilities” as used in the legislation.

· An “ordinary citizen” sued to block military action in Gulf War I.  (Pietsch v. Bush).  Held: no standing to sue.

Recently, America-hater Ramsey Clark and his cohorts challenged the conditions under which Taliban and al-Qaeda prisoners are being incarcerated at Guantanamo Bay.  That case, too, failed – the federal district judge in California holding it to be non-justiciable. This month lawyers for Guantanamo detainees appealed a federal district judge’s ruling that 12 Kuwaitis, two Australians and two British Muslims captured in Afghanistan and Pakistan are outside the American judicial system, and thus can be held by our military indefinitely without charges being filed.

In the year since September 11, 2001, the war on terrorism has gained even more momentum.  The Patriot Act has given the government in general, and the Department of Justice in particular, strong new powers to deal with domestic terrorists.  By Executive Order, the President has created military tribunals to try non-citizens for terrorism.  A new Department of Homeland Security has been established, mandating the most sweeping government reorganization since the New Deal.  George Bush has taken the handcuffs off the CIA, whose franchise now includes hunting down and eliminating terrorists throughout the world.  The FBI and CIA, as well as other federal agencies, are cooperating more with each other than ever before, and with state and local law enforcement. American turncoats like John Walker Lindh and alien terrorists like Zacarias Moussaoui are facing federal criminal courts. Other citizens, like the Buffalo Six and the Portland Six, are under indictment.  So far, one American lawyer has been charged with aiding and abetting terrorists.  In the months, and perhaps years, to come, we will see much more legislation and law enforcement action against terrorists and those who assist them.

As a consequence of all this and more anti-terrorist activity, we will see further attempts by the Left to employ the American legal system as an instrument to thwart our national war on terrorism. Those attempts will not succeed.  The courts will not allow themselves to be used as instruments of Left-wing political manipulation designed to make a mockery of separation of powers, a fundamental principle of American constitutional law.


Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.



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