Jude over at Political Waves alerts us to the below story about Attorney General Alberto Gonzalez's speech about the judiciary's role in times of war. What Gonzales is saying is that the courts should butt out, that foreign affairs is no business of the courts and that the Presidency reserves for itself all policy decisions on war and peace.

Gonzales Cautions Judges on Interfering MICHAEL J. SNIFFEN, AP Friday, September 29, 2006

WASHINGTON — Attorney General Alberto Gonzales, who is defending President Bush’s anti-terrorism tactics in multiple court battles, said Friday that federal judges should not substitute their personal views for the president’s judgments in wartime.

He said the Constitution makes the president commander in chief and the Supreme Court has long recognized the president’s pre-eminent role in foreign affairs. “The Constitution, by contrast, provides the courts with relatively few tools to superintend military and foreign policy decisions, especially during wartime,” the attorney general told a conference on the judiciary at Georgetown University Law Center.

It's hard to imagine this happening today, but back during the 1960's and 1970's, at least on judge on the Supreme Court deemed it the Court's duty to end the Vietnam War. This was a judge from the World War II generation who did not want the country to slide further into the Vietnam quagmire.

In 1970, the Court decided not to hear a case challenging the legality of the war. The State of Massachusetts actually brought the lawsuit. The general rule is that the Court cannot rule on legal issues that are best left to Congress and the elected representatives. These are called "political questions." War is a classic example of this kind of issue. Leave it to the voters. But what if the voters want an end to war and the President and Congress wage war anyway? Justice William O. Douglas wanted the Court to hear the case and filed a dissenting opinion. Since Congress never formally declared war, he said, the war is being fought illegally.

Today we deny a hearing to a State which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war. Three years ago we refused to hear a case involving draftees who sought to prevent their shipment overseas. The question of an unconstitutional war is neither academic nor "political." This case has raised the question in an adversary setting. It should be settled here and now.

The Vietnam war raged on for a few more years. Even the most liberal Supreme Court in U.S. history could not find the strength to stop it even though the case was brought to its doorstep. History repeated itself a few years later.

After President Nixon bombed Cambodia during the Vietnam War, the nation was in a fury. The college students killed at Kent State University in Ohio were protesting that bombing campaign when the National Guard shot them down. It was inevitable that this controversy would end up before the Supreme Court. A few years later, the Court would not halt the bombing, but once again, Justice Douglas disagreed, filing a remarkable dissenting opinion which compared the lawsuit to a death penalty case in light of the obvious consequence of Nixon's decision to bomb Cambodia:

This case in its stark realities involves the grim consequences of a capital case. The classic capital case is whether Mr. Lew, Mr. Low, or Mr. Lucas should die. The present case involves whether Mr. X (an unknown person or persons) should die. No one knows who they are. They may be Cambodian farmers whose only "sin" is a desire for socialized medicine to alleviate the suffering of their families and neighbors. Or Mr. X may be the American pilot or navigator who drops a ton of bombs on a Cambodian village. The upshot is that we know that someone is about to die.

Douglas then wrote that "It has become popular to think the President has that power to declare war. But there is not a word in the Constitution that grants that power to him. It runs only to Congress." He wanted to at least temporarily stop the bombing so the Court could decide whether the bombing was illegal. He explained, "even if the 'war' in Vietnam were assumed to be a constitutional one, the Cambodian bombing is quite a different affair. Certainly Congress did not in terms declare war against Cambodia and there is no one so reckless to say that the Cambodian forces are an imminent and perilous threat to our shores."

These court rulings would make it almost impossible for someone today to bring a challenge to the Iraq War. The Court is dominated by Republicans anyway, and it is impossible to imagine anyone even trying to stop the war through legal action. But 30 years after the fact, it is equally remarkable that even a single Supreme Court Justice thought the Court had a duty to end the Vietnam war.