Army Captain Nathan Michael Smith, 28, has filed suit against President Obama in the U.S. District Court for the District of Columbia, contending that the president lacks legal authority for his war against the Islamic State.
As his complaint explains, Captain Smith is an intelligence officer, deployed to Camp Arifjan, the Kuwait headquarters for Operation Inherent Resolve. He seeks a declaration that “President Obama’s war against ISIS is illegal because Congress has not authorized it,” as required by the 1973 War Powers Resolution.
The resolution in question gives the president a sixty-day window to obtain authorization from Congress after sending U.S. forces into harm’s way and grants only thirty additional days to terminate operations if he does not.
Smith argues that he has standing to bring his lawsuit because, “to provide support for an illegal war, he must violate his oath to ‘preserve, protect, and defend the Constitution of the United States.'”
The suit also notes that President Obama has not published a “sustained legal justification” for the operation against ISIS, prepared by the Justice Department’s Office of Legal Counsel or White House Counsel.
“He has instead left it to Administration spokespersons to provide ad hoc and ever-shifting legal justifications for a military campaign that is constantly changing its strategic objectives and escalating its use of force,” the suit alleges. “This pattern of lawlessness is inconsistent with the President’s obligation to ‘faithfully execute’ the War Powers Resolution.”
One of those “ever-shifting legal justifications” is the claim that Obama’s action against the Islamic State is covered by the 2001 Authorization for the Use of Military Force given to President George W. Bush. Smith flatly rejects that justification, pointing out that ISIS is not the party responsible for the 9/11 attacks. In fact, the Islamic State did not exist in 2001, and it is currently engaged in armed hostilities against the perpetrators of the attack, al-Qaeda.
Also, the 2002 AUMF authorizing the Iraq War covered a conflict that has been officially declared over, and it “does not even purport to cover military actions in Syria.”
Smith points out that he is not at all sympathetic to ISIS, which he describes as “an army of butchers,” and further states that his participation in the campaign against the Islamic State is “what I signed up to be part of when I joined the military.” He says that he, along with his fellow soldiers at Camp Arifjan, has been “cheering every airstrike and every setback for ISIS.”
However, he says his conscience compels him to object to a violation of the Constitution.
“In waging war against ISIS, President Obama is misusing limited congressional authorization for the use of military force as a blank check to conduct a war against enemies of his own choosing, without geographical or temporal boundaries,” he charges.
The New York Times argues the legal waters are further muddied by what Congress has done:
The Administration has asked Congress to enact new authorization for using military force against the Islamic State, but lawmakers have not acted on that request. They have, however, passed military appropriations bills that earmark funds for the effort against the Islamic State, which could suggest that lawmakers have acquiesced to the executive branch’s theory.
At least one legal expert, Harvard Law’s Jack Goldsmith, cited precedents for the notion that Congress “implicitly authorized” the war when it authorized funding for the operation.
Goldsmith also predicted that if Smith’s suit prevails, Congress would probably move quickly to authorize the war, “perhaps giving it broader scope than Mr. Obama has wanted.”
Goldsmith called the current situation “a terrible equilibrium where Congress doesn’t want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do.”
“Several lawmakers have pushed for a new authorization and the White House sent its own version to Capitol Hill. But many lawmakers have no interest in casting a war vote, leaving the issue languishing in Congress,” notes the Associated Press.
The proposal’s prohibition of the use of “enduring offensive ground combat operations” was intended to draw support from war-weary Democrats, but it ran into opposition from Republican leaders who didn’t want to constrain the military. And with liberals complaining that even that language was too broad, it seems nearly impossible that Congress will achieve a consensus on exactly what it wants to allow Obama to do.
Aides to then-House Speaker John Boehner said Republican leaders were “still interested in passing an AUMF, but we want a real, robust AUMF that reflects a real, over-arching strategy to accomplish what the president says is the goal: destroying ISIS.”
All of which amounts to a political justification for what Captain Smith challenges as a legal matter. In effect, Smith is trying to resuscitate laws that died because Democrats and Republicans alike found solid political reasons to ignore them.
Breitbart News legal editor Ken Klukowski said Smith would have a difficult time overcoming the legal hurdle of demonstrating that he has standing, or a right of action, to bring suit.
“At least some of President Obama’s actions — like launching a unilateral war in Libya — are unconstitutional without congressional authorization,” said Klukowski:
But whether these ISIS-related operations are legal or not, it is unlikely that any court will issue a decision. Federal courts have a strictly limited role in our nation and can only decide lawsuits that satisfy both constitutional and statutory requirements for the court to have jurisdiction in the first place, and Smith has failed to fulfill those legal requirements here.
As most media reports on Captain Smith’s lawsuit observe, his legal challenge arrives as President Obama’s long, unfocused war against ISIS is expanding, with the U.S. military presence in Syria expanding and a U.S. Navy SEAL dying in combat with ISIS militants.