(dissenting):
I believe there is standing for Congresswoman Holtzman under Baker v. Carr, 369 U.S. 186, 207-208, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) and Coleman v. Miller, 307 U.S. 433, 437-446, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). I believe there is standing for the airmen-appel-lees under Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) and Massachusetts v. Laird, 451 F.2d 26, 29 (1st Cir. 1971) which has not been mooted by their return to the United States. United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953).
I believe there is justiciability under Da Costa v. Laird, 471 F.2d 1146, 1156 (2d Cir. 1973), (Da Costa III) where the question “whether a radical change in the character of war operations . might be sufficiently measurable judicially to warrant a court’s consideration . . . . ” was expressly reserved. There is here “a manageable standard” under Da Costa III and Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952), since there has been such a *1316“radical change in the character of war operations.” The Defense Department is continuing to bomb in Cambodia despite the cease-fire in Vietnam and despite the return of our prisoners of war from North Vietnam. The justiciable question then is whether there is any Constitutional authorization for the employment of United States armed forces over Cambodia, now that the war in Vietnam has come to an end. There is no question under the law of this Circuit, Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir.) cert, denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), that the Executive lacks unilateral power to commit American forces to combat absent a “belligerent attack” or “a grave emergency.” See Mitchell v. Laird, 476 F.2d 533 (D.C.Cir. 1973).
Has Congress ratified or authorized the bombing in Cambodia by appropriations acts or otherwise? Congress can confer power on the Executive by way of an appropriations act. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 116, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947) (creation of new agency by Executive Order ratified by appropriation). And this Circuit has expressly held that congressional authorization for the war in Vietnam may be found in appropriations acts. Da Costa v. Laird, 448 F.2d 1368, 1370 (2d Cir. 1971), cert, denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972) (Da Costa II). Orlando v. Laird, supra, 443 F.2d at 1042.
I do not, moreover, agree with appel-lees’ argument that the Fulbright “proviso” adopted in all of the recent appropriations bills and limiting the use of Defense Department funds to support “Vietnamese or other free world forces in actions designed to provide military support and assistance to the government of Cambodia or Laos,” limited all prior authorizations to expenditures for United States forces in Cambodia only in aid in the release of Americans held as prisoners of war. E. g., Armed Forces Military Procurement Act of 1971, Pub.L.No.91-441, § 502(a)(1), 84 Stat. 905 (1970). The language of the appropriations acts seems to me to differentiate between “other free world forces” and “Armed Forces of the United States,” e. g., id. § 502(a)(2). The legislative history indicates also that there is a difference between “other free world forces” and “United States armed forces.” Even though the Fulbright proviso did not provide any affirmative grant of authority to the President to use “Armed Forces of the United States” in Cambodia, 119 Cong.Rec. S 7385-87 (daily ed. Apr. 13, 1973), Senator Fulbright himself considered the proviso operative only in respect to “South Vietnamese or other foreign military operations in support of the Cambodian or Laotian Governments.” Id. at S. 7385 (emphasis supplied).
Thus an argument could be made that congressional authorization of appropriations with knowledge of our “presence” in Cambodia was ratification. But for authorization on the part of Congress by way of an appropriation to be effective, the congressional action must be based on a knowledge of the facts. Greene v. McElroy, 360 U.S. 474, 506-507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) (appropriation to Defense Department for security program did not ratify procedure denying right of an individual to confront witnesses). I am aware of only one instance in which it has previously been argued that a war was illegal as a result of Congress being misinformed as to the underlying facts surrounding American participation in that war. While the argument was unique and unsuccessful to boot, however, time has vindicated it, I believe. Furthermore, it was advanced by one whose views are worth consideration, even if they were expressed in “dissent,” so to speak. I refer of course to Abraham Lincoln and his argument as a lone Congressman on January 12, 1848, in opposition to our “incursion” into Mexico and what later was called the Mexican War. See Cong. Globe, 30th Cong. 1st Sess. 93 et seq. (Appendix 1848).
And here, incredibly enough, it appears that neither the American people *1317nor the Congress, at the time it was voting appropriations in aid of the war in Vietnam, were given the facts pertaining to our bombing in Cambodia. Recent disclosures have indicated that Air Force B-52 bombers were secretly attacking Cambodia in 1969, 1970 and even later while the United States was publicly proclaiming respect for Cambodian neutrality. See N.Y.Times July 17, 1973, at 1; July 18, 1973, at 1, July 22, 1973, Sec. E, at 3; July 24, 1973, at 1; July 25, 1973, at 1; July 29, 1973, at 1; Aug. 8, 1973, at 6; Aug. 9, 1973, at 7.
The government argues that these secret bombings occurred in 1969 and 1970, and ended when our activities in Cambodia became open subsequently. But the Congress whose ratification by way of appropriations acts is contended for here did not become aware of thes*1 covert bombings until July of 1973. And meanwhile the Congress had declared in the so-called Mansfield Amendment that it was “the policy of the United States to terminate at the earliest practicable date all military operations of the United States in Indochina . ” Appropriations Authorization-Miltary Procurement Act of 1972, Pub.L.No.92-156, § 601, 85 Stat. 423 (92nd Cong., 1st Sess. 1971).
The combination of concealment of the facts from Congress together with the enactment of a policy of “earliest practicable” withdrawal do not amount in my mind to an appropriations carte blanche to the military to carry on bombing in Cambodia after the cease-fire, withdrawal of our troops from Vietnam, and return of our prisoners of war from North Vietnam.
We come then to the effect of the legislation, following upon a presidential veto of an immediate prohibition against the use of funds to bomb in Cambodia, adopted as a compromise this July 1st: the Continuing Appropriations Act for Fiscal Year 1974, Pub.L.No.93-52, 93rd Cong. 2nd Sess. (July 1, 1973) which expressly provided that “. . . on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” § 108. In colloquy between Senators Eagleton and Fulbright, inadvertently omitted in the briefs of appellees and the opinion of the lower court, the former inquired whether “the adoption of this resolution [would] permit the bombing of Cambodia” and Senator Fulbright replied, “Until August 15”. 119 Cong.Rec. S 12562 (daily ed. June 29, 1973). Again, in the same colloquy Senator Fulbright, conceding “Presidential power”, said that “The President has the power to do a lot of things of which I do not approve,” after being asked by Senator Eagleton whether under the resolution the President’s “power to bomb in Indochina - . will now be sanctioned by our action.” Id. In neither case, however, is there recognition of legality or past authorization. Senator Fulbright had previously stated, as Judge Judd recognized, that “The acceptance of an August 15 cut off date should in no way be interpreted as recognition by the committee of the President’s authority to engage U.S. forces in hostilities until that date. The view of most members of the committee has been and continues to be that the President does not have such authority in the absence of specific congressional approval.” 119 Cong.Rec. S 12560 (daily ed. June 29, 1973).
It can be argued that Congress could, if it had so desired, cut off the funds for bombing Cambodia immediately by overriding the Presidential veto. This was indeed championed by those voting against the ultimate compromise Resolution. But it does not follow that those who voted in favor of the Resolution were thereby putting the Congressional stamp of approval on the bombing continuation. While the Resolution constituted a recognition that Executive power was being exercised, it did not constitute a concession that such exercise was rightful, lawful or constitutional.
*1318It may be that those voting for the Resolution thought that in some way previous appropriations acts or the omission expressly to prohibit a continuation of bombing after the cease-fire and return of our prisoners of war amounted to an authorization, which could only be limited by affirmative congressional action. But as I have previously suggested I cannot find any express congressional authorization for such a continuation of the Cambodian bombing, nor do I think that authorization can be implied from prior appropriations acts. This being true, affirmative action on the part of Congress was not necessary as a matter of constitutional law. An agreement by the Executive to some cut off date was essential, however, because the legality of bombing continuation might not be tested or testable for months to come, by the very nature of the judicial process. Therefore, Congress as I see it, took the only practical way out. It acknowledged the reality of the Executive’s exercise of power even while it disputed the Executive’s authority for that exercise. It agreed to a final cut-off date as the best practical result but never conceded the legality or constitutionality of interim exercise.
Thus the Resolution of July 1, 1973 cannot be the basis for legalization of otherwise unlawful Executive action. We are talking here about the separate branches of government, and in doing so we must distinguish between the exercise of power on the one hand and authorization for such exercise on the other. That the Executive Branch had the power to bomb in Cambodia, there can be no doubt; it did so, and indeed is continuing to do so. Whether it had the constitutional authority for its action is another Question.
If we return to fundamentals, as I think we must in the case of any conflict of view between the other two Branches of Government, it will be recalled that the Founding Fathers deliberately eschewed the example of the British Monarchy in which was lodged the authority to declare war and to raise and regulate fleets and armies. See The Federalist No. 69 (A. Hamilton). Rather, these powers were deliberately given to the Legislative Branch of the new American Republic in Article I, section 8 of the Constitution. See 7 Works of Alexander Hamilton 81 (J. Hamilton ed. 1851), cited in Note, Congress, The President, and The Power to Commit Forces to Combat, 81 Harv.L.Rev. 1771, 1773, n. 14 (1968). I fail to see, and the Government in its able presentation has failed to point out, where the Congress ever authorized the continuation of bombing in Cambodia after the cease-fire in Vietnam, the withdrawal of our forces there, and the return of our prisoners of war to our shores. Accordingly, I must dissent, and although on a somewhat different analysis would affirm the judgment below.