THE CONSTITUTION: The Odd Pause That Wasn't

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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."