Plaintiffs do not seek relief that would dictate foreign
policy but rather to enforce existing law concerning the
procedures for decisionmaking. Moreover, the issue here is
not a political question simply because it involves the ap-
portionment of power between the executive and legisla-
tive branches. The duty of courts to decide such questions
has been repeatedly reaffirmed by the Supreme Court. See
e.g. Nixon v. Fitzgerald, U.S., 102 S.Ct. 2690, 2703-04,
72 L. Ed.2d 1349 (1982); United States v. Nixon, 418 U.S.
683, 94 S.Ct. 3090, 41 L. Ed. 2d 1039 (1974); Buckley v.
Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659
(1976). [Id.]

Judge Green did admit that a case could arise in which a court could conclude on its own that U.S. forces were involved in hostilities. For example, she noted, it would not involve a political question for a court to make such a determination in a situation comparable to Vietnam. However, the judge reasoned, in this case the court faced a dispute as to whether "a small number of American military personnel who apparently have suffered no casualties have been introduced into imminent hostilities. The subtleties of factfinding in this situation should be left to the political branches." [Id. at 899] Judge Green continued:

If Congress doubts or disagrees with the Executive's deter-
mination that U.S. forces in El Salvador have not been in-
troduced into hostilities or imminent hostilities, it has the
resources to investigate the matter and assert its wishes.
The Court need not decide here what type of congressional
statement or action would constitute an official congres-
sional stance that our involvement in El Salvador is sub-
ject to the WPR, because Congress has taken absolutely no
action that could be interpreted to have that effect. Cer-
tainly, were Congress to pass a resolution to the effect that
a report was required under the WPR, or to the effect that
the forces should be withdrawn, and the President disre-
garded it, a constitutional impasse appropriate for judicial
resolution would be presented. Goldwater v. Carter, 444
U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1976) (Powell, J.,
concurring). [Id.]

Even if the factfinding problem could be resolved and did not require the resolution of a political question, Judge Green stated that the court would not order the withdrawal of U.S. forces from El Salvador at that time. At most, she said, the court could order the President to file a report to Congress under the terms of the War Powers Resolution. After reviewing the structure and legislative history of the Resolution, Judge Green concluded:

The Court finds that the legislative scheme did not contemplate court-ordered withdrawal when no report has been filed, but rather, it leaves open the possibility for a court to order that a report be filed or, alternatively, withdrawal 60 days after a report was filed or required to be filed by a court or Congress. The legislative scheme was carefully designed to force congressional consideration of

American military involvement abroad once a report is
filed. The priority procedures of Section 5 of the Act, 50
U.S.C. § 1545, assure that a bill or resolution introduced to
approve military involvement which has been the subject
of a WPR report will be promptly considered by both
houses of Congress. Accordingly, while the involvement
will automatically terminate after 60 days if either house
fails to act or if the two houses are unable to reach an
agreement, this can only occur after open and formal con-
sideration of the question by both full houses, provided
that at least one member of either house introduces a bill
or resolution. In contrast, when no report has been submit-
ted, there will not necessarily be any debate or floor con-
sideration of the issue at all. If plaintiffs' position is cor-
rect, total congressional inaction (which perhaps could sig-
nify general agreement with the President's appraisal that
no report is required) could result in mandatory withdraw-
al of U.S. forces if a court adjudged that they had been in-
troduced into hostilities or imminent hostilities more than
60 days previously. In all of the extensive debate on the
mandatory withdrawal provision, this possibility was never
entertained. [Id. at 901]

Although Judge Green stated that she need not reach the question because the nature of the factfinding in the case precluded judicial inquiry, she specifically ruled that a court could determine that a report was required under the War Powers Resolution.

Turning to the Foreign Assistance Act, Judge Green held that the cause of action under section 502B must be dismissed in the court's equitable discretion under the doctrine of Riegle v. Federal Open Market Committee, supra. (See discussion supra, page 157.) Judge Green found that the "plaintiffs' concern that aid is being given to a country which is engaging in a consistent pattern of gross violations of human rights has been directly addressed by Congress" in the International Security and Development Cooperation Act of 1981. [Id. at 902] Under that act, Judge Green pointed out, the President had twice certified to Congress that El Salvador was attempting to end violations of human rights, and Congress had subsequently taken no action to end aid to the country. Judge Green refused to independently review the President's certifications, noting that: "Whatever infirmities the President's certifications may or may not suffer, it is clear that under these circumstances plaintiffs' dispute is primarily with their fellow legislators who have authorized aid to El Salvador while specifically addressing the human rights issue, and who have accepted the President's certifications." [Id. ]

Judge Green concluded her opinion with the following observation:

While a court upon scrutiny of detailed discovery might not agree with the President's assessment of the human rights situation in El Salvador, and could possibly conclude that the provision of security assistance under these circumstances violates section 502B of the Foreign Assistance Act, the equitable discretion doctrine prevents considera

tion of these issues on behalf of congressional plaintiffs.
Their dispute is primarily with their fellow legislators.
Action by this Court would not serve to mediate between
branches of government, but merely aid plaintiffs in cir-
cumventing the democratic processes available to them.
[Id. at 903]

On December 2, 1982, the plaintiffs filed a notice of appeal to Judge Green's decision to the U.S. Court of Appeals for the District of Columbia Circuit. [No. 82-2461]

Status-The case is pending in the U.S. Court of Appeals for the District of Columbia Circuit. There was no docketed activity of note in the appeals court through March 1, 1983.

The complete text of the February 5, 1982 order of the district court is printed in the "Decisions" section of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1982.

The complete text of the October 4, 1982 memorandum opinion of the district court is printed in the "Decisions" section of this report at page 617.

Vander Jagt v. O'Neill

[See page 297.]

Moore v. United States House of Representatives

[See page 382.]

Paul v. United States

[See page 382.]

American Federation of Government Employees v. Pierce [See page 343.]

IV. Balancing Legislative Immunity With the Law of Defamation Holy Spirit Association for the Unification of World Christianity v. Fraser

Civil Action No. 78-1153 (D.D.C.)

This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978 by the Holy Spirit Association for the Unification of World Christianity ("Unification Church" or "Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit were U.S. Representative Donald M. Fraser from Minnesota, Chairman of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin.

The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights. Specifically, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and "all persons associated with the Unification Church and Bo Hi Pak" of their rights of freedom of speech, freedom of association, freedom of expression and freedom of religion. The plaintiffs alleged that Rep.

Fraser distributed defamatory materials regarding the plaintiffs; attempted to "deceive and trick" Bo Hi Pak during Pak's testimony before the Subcommittee; caused the payment of fees to witnesses who testified before the Subcommittee; and leaked or permitted leaking of testimony given by Bo Hi Pak in executive session. The plaintiffs claimed that these activities, in addition to violating their rights of freedom of religious exercise and association, damaged their reputations and resulted in financial damage to them due to curtailment of their activities and a reduction in financial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the defendants from violating or conspiring to violate the plaintiffs' rights under the First, Fourth, or Fifth Amendments, $5 million in compensatory damages, and $10 million in punitive damages.

The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one, that defendants Gragert and Lewin, representing themselves as architects, fraudulently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr. Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activities complained of in Count II also resulted in damage to their reputations and financial harm. Their demands under Count II included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under Count I.

On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that the Speech or Debate Clause of the U.S. Constitution 1 provided them with immunity from suit and liability because the actions complained of were within the sphere of legitimate legislative activity. Additionally, the defendants asserted that the complaint failed to state a claim upon which relief could be granted.

On December 11, 1978, the plaintiffs filed an opposition to the motion to dismiss contending that the Congressional defendants were not absolutely immune from suit because no legislative function of any of the acts complained of had been shown. Further, because the plaintiffs termed the defendants' conduct "unconstitutional and unlawful", they argued it could not be protected by legislation or other privilege.

On January 25, 1979, the Unification Church filed an amended complaint, which, while restructuring the allegations of the original complaint, contained each of the allegations set out in the original. Additionally, Count I of the amended complaint contained an allegation which had not been made in the original complaint: that Rep. Fraser maliciously and without any valid legislative purpose publicly distributed outside Congress various materials regard

1 The Speech or Debate Clause of the US Constitution provides that "for any Speech or Debate in either House. [US. Senators and US Representatives) shall not be questioned in any other Place" [art. I. § 6, cl. 1]

ing the plaintiffs, or persons associated with the plaintiffs, which were defamatory and libelous per se. The materials allegedly contained statements to the effect that the Unification Church was organized by a director of the Korean Central Intelligence Agency who used it as a political tool; that Colonel Pak "was in trouble because he had attempted to initiate into his church (i.e., to have sexual relations with) the wife of a visiting ROK official"; that the Unification Church interpreted the Bible in sexual terms and maintained that religious experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. The plaintiffs claimed in the amended complaint that they advised the defendants that the statements were false and defamatory. The plaintiffs also alleged that the committee, prior to publication of the subcommittee's final report, at the direction of Rep. Fraser, falsely and fraudulently represented to the plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published.

On April 13, 1979, the Unification Church filed what it styled a "second" amended complaint. While the amended complaint charged only Rep. Fraser with maliciously and without any valid legislative purpose publicly distributing outside Congress various materials regarding the plaintiffs or persons associated with plaintiffs, which were defamatory and libelous per se, the "second" amended complaint charged all the defendants with this allegation. Also, added to the alleged statements made by the defendants were statements made by Rep. Fraser during his election campaign for the Senate to the effect that the plaintiffs "may have been responsible for setting fire to Congressman Fraser's Washington home shortly after the Minnesota primary"; that the plaintiffs campaigned against Rep. Fraser in his reelection campaign; and that there were "links between the Korean CIA and Rev. Sun Myung Moon."

Added to the charges previously mentioned in the amended conplaint was the assertion that some of the alleged statements were contained in a government document which was printed and distributed, with the approval of defendant Fraser, in a quantity in excess of that reasonably required for the legislative function.

On May 14, 1979, Rep. Fraser, Mr. Gragert, and Mr. Lewin filed a motion to dismiss the first amended complaint, or in the alternative, for summary judgment. (The defendants noted that the socalled "second" amended complaint was not properly before the court since the plaintiffs had not been granted leave of the court to amend their original complaint for a second time as required by Rule 15 of the Federal Rules of Civil Procedure. As a consequence, the defendants addressed the first amended complaint as supplemented by the more specific statements attributed to Rep. Fraser.) In a memorandum accompanying the motion, the defendants. argued first that injury to reputation did not constitute a violation of a constitutionally protected right and therefore could not be the basis for a suit for money damages in Federal court. Next, the defendants stated that Rep. Fraser's involvement in the Government publication in question consisted solely of voting in favor of its being published. Citing Doe v. McMillan, 412 U.S. 306 (1973), they