The current war on ISIS depends on a decade-old congressional authorization for attacks on al-Qaida in Iraq, yet al-Qaida and ISIS are enemies fighting against each other in Syria.
WASHINGTON — An active-duty U.S. Army captain is suing the Obama administration for waging what he argues is an illegal war in the Middle East, and the government is urging the court to reject the case without even hearing it.
Under the 1973 War Powers Resolution, the president of the United States has 60 days to get the approval of Congress after starting any military conflict. Yet, as Matt Ford noted in The Atlantic in May, the Obama administration defends the legality of the ongoing war on Daesh “by arguing the organization falls under two earlier congressional acts: the 2001 authorization for use of military force, or AUMF, against al-Qaeda, and the 2002 military authorization that sanctioned the Iraq War.”
In addition to bringing into question the legality of the current war on Daesh (an Arabic acronym for the terrorist group commonly known in the West as ISIS or ISIL), the case raises concerns about how future presidents may proceed to order military action.
In an Aug. 24 piece for The Atlantic, Bruce Ackerman, a professor at Yale Law School who is serving as a constitutional consultant on the lawsuit, warned that the Obama administration’s war on Daesh sets the stage for future presidents to wage virtually limitless wars without congressional approval.
“His Justice Department is in fact pushing the law in a direction that will enable the next president to declare war against any ‘terrorist’ group or nation without the consent of Congress,” Ackerman wrote.
In May, Nathan Smith, a U.S. Army captain stationed in Kuwait, filed a lawsuit against President Barack Obama to try to force the government to seek congressional approval for the war. According to the lawsuit, Smith isn’t opposed to military action against Daesh, but believes that Obama did not obtain the proper approval to take such action.
“How could I honor my oath when I am fighting a war, even a good war, that the Constitution does not allow, or Congress has not approved?” the lawsuit quotes Smith as saying.
Because he believes the war to be illegal, Smith is left with a choice: Break the oath he took to uphold the Constitution, or disobey his orders from the military and face a court martial.
In using prior authorizations for the use of military force to wage war on Daesh, Ackerman argues that Obama “took advantage of widespread confusion.”
He further noted that Daesh did not even exist when Congress authorized the previous uses of force, and in the intervening 15 years, Daesh and al-Qaida have become enemies that fight on opposing sides in the Syrian civil war.
On July 11, the government responded to Smith’s lawsuit by urging the court to dismiss the case, arguing that Smith doesn’t have enough at stake to challenge the legality of the war on Daesh. Ackerman wrote that the Justice Department’s argument “ignores the fact that [Smith] potentially faces a court-martial if he is obliged to act on his considered legal judgments.”
Ackerman and Smith responded with an Aug. 18 brief, “emphasizing the dangers involved in the way the Justice Department has responded to Smith’s lawsuit.”
“If the Justice Department succeeds in denying Smith a judicial hearing on the merits, this will make it impossible for anybody to appeal to courts to prevent future presidents from treating the War Powers Resolution with impunity,” Ackerman wrote in The Atlantic.
While the courts could simply compel Congress to reexamine the war on Daesh, Ackerman hopes the case will go to trial in order to set precedence that wars are not above judicial scrutiny.
As Ackerman wrote in 2015:
“[E]ven if the Roberts Court upheld the administration’s view, it would put future presidents on notice that the justices will seriously scrutinize further efforts to transform the resolutions of 2001 and 2003 into open-ended grants for new military adventures.”
Brief “What Does The Constitution Actually Say About Waging War?” from MintPress News’ “Behind the Headline”: