The Odd Pause That Wasn't

For exactly six hours and ten minutes one day last week, Associate Justice William O. Douglas of the U.S. Supreme Court outlawed the American bombing of Cambodia. That was not quite long enough to stop the actual bombing, of course. Nor was Douglas' action much of a legal landmark, since it was overturned later the same day by one of his colleagues, with the backing of the other members of the Supreme Court. Nonetheless, it was the latest and certainly the oddest of a growing number of battles between the Nixon Administration and both the Legislative and Judicial Branches of the Federal Government, the most historic of which is over Nixon's tapes and documents (see following story).

War Power. In a compromise with Congress the President had already agreed to end the Cambodian bombing by Aug. 15. That was not soon enough for Congresswoman Elizabeth Holtzman, a Brooklyn Democrat, and four Air Force officers. They brought suit seeking to force the President to halt the bombing on the strictly constitutional grounds that only Congress has the power to declare war and that an air war on Cambodia was undeclared. The Government contended that the bombing was "part and parcel of a war that has continued for many years."

Two weeks ago Federal District Judge Orrin Judd ruled in Brooklyn that the bombing was "unauthorized and unlawful." His ruling was quickly made temporarily ineffective by the Second Circuit Court of Appeals, and a few days later Supreme Court Justice Thurgood Marshall, stressing procedural grounds rather than the merits of the case, permitted the bombing to continue.

That set the stage for the latest chapter in the case, which began last Wednesday night when an attorney for the American Civil Liberties Union, Norman Siegel, 29, flew from Washington, D.C., to Seattle, then drove 145 miles to Goose Prairie, Wash., site of Douglas' rustic summer retreat.

Douglas agreed to hold a hearing the next day in Yakima. There, in a musty courtroom, he listened to arguments by the A.C.L.U. and by two hastily summoned Government lawyers. When Dean Smith, the U.S. Attorney from Spokane, asserted that the Aug. 15 cutoff date had been aimed at averting a confrontation between the President and Congress, Douglas replied: "We live in a world of confrontation. That's what the whole system is about."

The hearing over, he retired to write an opinion, which was released at 9:30 the following morning by the Supreme Court in Washington, D.C. Treating the matter as a capital case, since it involved the lives of American airmen as well as Cambodian peasants, Douglas wrote: "I do what I think any judge would do in a capital case--vacate the stay entered by the Court of Appeals."

Abandonment. Only ten minutes after the decision was released, Deputy Solicitor General Daniel Friedman entered the court and handed the clerk the Government's request for a new stay order. Chief Justice Warren Burger suggested that Justice Marshall, who supervises the Second Circuit, should handle the matter, and began sounding out other members of the High Court on the issue. Marshall reached the court by 11 a.m. Some four hours later, after conferring by telephone with other Justices, Marshall issued an order that permitted the bombing to continue. In effect, the Justices informally voted 8-1 to bring an end to the Douglas bombing pause; they decided on technical grounds, avoiding the ponderous constitutional issues. The next step will come this week when the Second Circuit hears the Government's appeal of the district court's order halting the bombing.

There was no respite, however, in the controversy over the continuing U.S. role in Cambodia. The President served notice last week that he would respect his commitment to Congress to suspend the bombing on Aug. 15. But, in a letter to congressional leaders, he warned that the bombing cutoff represented the "abandonment of a friend" and could have "dangerous potential consequences" elsewhere in Asia, particularly in Thailand.

To congressional critics, the President's message appeared to be an attempt to shift to Congress the blame and responsibility if the Cambodian government of President Lon Nol should fall to the Khmer rebel forces some time after Aug. 15 (see THE WORLD). Many Congressmen were also upset about the Administration's recently revealed secret bombing of Cambodia in 1969 and 1970 (TIME, July 30). General Earle G. Wheeler, former Chairman of the Joint Chiefs of Staff, defended the policy before the Senate Armed Services Committee last week, arguing: "Secrecy has been in vogue in the military for centuries."

The Administration justified the secrecy on the grounds that the bombing had been approved by Prince Sihanouk, the Cambodian ruler at the time, who was then having to live with North Vietnamese troops inside his country, and that the U.S. had not wanted to force him into having to protest the bombing. But the secrecy outraged a number of Congressmen. Iowa Senator Harold Hughes called it "a deliberate attempt by the Administration to conceal the bombing because they were afraid of public reaction," and Senator Stuart Symington charged the Administration with spending $145 million--which he calculated as the cost of the secret bombing--"under false pretenses." The Pentagon, surprisingly, replied that the real cost of the secret bombing in Cambodia and Laos during that period was $1.5 billion.

This file is automatically generated by a robot program, so reader's discretion is required.