WE REMEMBER (self-reference alert):

Driven by the illegality and murderous injustice of the war, I flew across the country and drove all night in the summer of 1973 to ask Supreme Court justice William O. Douglas to stop the unconstitutional bombing of Cambodia, secretly ordered by President Nixon in April 1970. It was the last gasp in the ACLU's sustained effort to enforce Congress's exclusive power to declare war. I owe a special debt in the Vietnam War cases to my long-time colleague and mentor at NYU and the ACLU, Norman Dorsen, who was already a respected academic in those days, as well as an ACLU general counsel. Norman agreed to lend his analytic precision and academic prestige to the Second Circuit argument in DaCosta v. Laird, an early effort to challenge the war's constitutionality. In the course of a brilliant 45-minute oral presentation, Norman turned a fringe theory into a credible legal argument. He also persuaded me that it was possible to link an activist life in court with a career as a law professor.

Once Norman had rendered the arguments respectable, Leon Friedman and I peppered the courts with constitutional challenges to the Vietnam War. Every expansion of the country's military presence in Vietnam, like the mining of Haiphong Harbor, triggered a new constitutional challenge. We zeroed in on two extraordinarily decent and conscientious Brooklyn federal judges, Orrin Judd and John Dooling, arguing that neither the Tonkin Gulf Resolution, nor routine votes on military appropriations, were constitutionally adequate Congressional authorizations for a full-scale war.

The Brooklyn judges were clearly uncomfortable. One afternoon, Judge Dooling interrupted my argument in the Haiphong Harbor case and called me to the bench. I expected a verbal spanking for some gaffe.

 

Instead, Judge Dooling said: "Mr. Neuborne, you seem to be having a very good time arguing this case. I'm not having much fun judging it. How about changing places?" 

 

I told him: "Not on your life, your honor. I have the easy job. The tough job is yours. Please do it."

 

We lost again.

Finally, Judge Judd bit the bullet -- literally -- in a case challenging the carpet bombing of Cambodia. Congresswoman Elizabeth Holtzman of Brooklyn, New York, and a group of Air Force bomber pilots stationed at the Utapao Air Force base in Thailand sought a judicial ruling that the bombing of Cambodia was unconstitutional because it was unauthorized by Congress. On July 25, 1973, in a deceptively simple opinion, federal Judge Orin Judd of the Eastern District of New York ruled that Congress had not only failed to authorize the bombing of Cambodia, it had forbidden it. Judge Judd issued an injunction prohibiting the unauthorized bombing -- the first and only time a federal district judge enforced the War Powers Clause of the Constitution. This was an act of courage and wisdom that deserves to be remembered.

Once Judge Judd had issued his injunction, the Holtzman case careened wildly through the appellate courts. Judd delayed his order for a day or two to permit the government to seek appellate review. On July 27, the Second Circuit Appeals Court in Manhattan issued an order allowing the bombing to continue pending a speedy appeal. Since the Supreme Court had adjourned for the summer, I flew to Washington, D.C, and asked Justice Thurgood Marshall to reinstate the injunction pending appeal. On August 1, after hearing several hours of argument in his Supreme Court chambers, Marshall explained that while he agreed with Judge Judd's opinion, since the Supreme Court was in summer recess, he felt obliged to act as a surrogate for the full court, predicting how his absent colleagues would probably vote.

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