[pjw] How The Supreme Court Could Intervene in The War on ISIS (Atlantic 8/26)

Peace and Justice Works pjw at pjw.info
Wed Sep 2 13:24:49 EDT 2015

We were talking at the last Iraq Affinity Group meeting about finding a 
soldier who might have standing to challenge the wars in Iraq and
Afghanistan continuing (and the one in Syria starting) without 
Congressional authorization. We noted that youth, including some from 
Oregon, have sued the government over climate change issues:

This article seems to indicate we're on the right path-- so if you know 
anyone who has recently or is about to be deployed and who wants to 
challenge the legality of the "wars" let us know.

Reminder, too, that our meeting is tomorrow, Thursday the 3rd, this month.

dan h
Peace and Justice Works
   Iraq Affinity Group

Can the Supreme Court Force Congress to Own the War on ISIS?
    Judicial intervention may be the only way left to break the political
    impasse on authorizing Obama's use of force.
      * [49]Bruce Ackerman     * Aug 25, 2015

    The biggest casualty in the struggle against the Islamic State so far
    has been the American Constitution. One year into the battle, the
    president and Congress threaten to destroy all serious restraints
    against open-ended war-making by the commander-in-chief. President
    Obama waited for half a year before even submitting a draft resolution
    authorizing his initiative. But it is now obvious that the
    Republican-controlled Congress finds it politically convenient to stand
    on the sidelines and let Obama take the blame for the escalating
    instability. That leaves only the Supreme Court to halt this
    transformation of the president into a latter-day King George III.

    As The Atlantic's Garrett Epps [50]rightly emphasizes,  allowing the
    president to go unchallenged will produce a terrible precedent. As the
    rise and rise of Donald Trump suggests, future presidents may make
    aggressive use of their powers as commander in chiefÑand they will
    predictably point to ObamaÕs unilateral war on ISIS to justify their
    own military adventures.

    Enter the Supreme Court. Since the justices would deny standing to the
    bipartisan group of legislators on Capitol Hill who have failed to
    convince their colleagues to take their constitutional responsibilities
    seriously, everybody has assumed that the Court will remain on the
    sidelines as ObamaÕs war continues. This is a mistake.

    Existing case-law establishes that individual soldiers can go to court
    if they are ordered into a combat zone to fight a war that they believe
    is unconstitutional. During the closing years of the Vietnam War,
    [52]two federal courts of appeal carefully [53]considered, and
    unanimously affirmed, the standing of soldiers to bring such
    complaints. Neither court backed those challenges on the merits, but
    the facts surrounding Richard NixonÕs escalation in Vietnam raised very
    different issues from those raised by the ISIS campaign.

    The Supreme Court never resolved the standing question in the 1970s.
    But the case law allows a single brave soldier to bring the issue
    before todayÕs justices. How should they answer it?

    The Court has wisely left it to the political branches to work out
    their inter-branch conflicts over foreign policy. But the decision over
    war and peace is special. The Constitution explicitly requires the
    president to gain congressional approval. This founding commitment was
    reinforced by the passage of the War Powers Resolution, over Richard
    NixonÕs veto, in 1973. Responding to the popular movement against
    NixonÕs Vietnam escalations, Congress established clear ground-rules
    for the future. Henceforth, presidents would be required to gain
    explicit Congressional consent within 60 days of initiating
    Òhostilities,Ó and if they failed, they had to withdraw from the battle
    within the next 30 days.

    Existing case-law establishes that individual soldiers can go to court
    if they are ordered into a combat zone to fight a war that they believe
    is unconstitutional.

    Obama claims these requirements donÕt apply to his war. In his view,
    the old resolutions President Bush obtained against Al Qaeda and Saddam
    Hussein in 2001 and 2003 supply the requisite Congressional consent for
    his campaign. That holds true, the administration argues, even though
    [54]according to General Martin Dempsey, chairman of the Joint Chiefs
    of Staff, the battle  will continue through 2018.

    Most lawyers and scholars, myself included, have criticized this effort
    to use decade-old resolutions as the basis for a war against a
    terrorist group that didnÕt even exist when Congress authorized the
    invasions of Afghanistan and Iraq. But even if the Roberts Court upheld
    the administrationÕs 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.

    The Supreme CourtÕs emergence from the sidelines could only proceed
    with deliberate speed. When confronting an order into the zone of
    conflict, a member of the military must first have the courage to raise
    a legal challenge. It would then take a year or more before the case
    could make it to the Supreme Court. During this interval, the threat of
    judicial intervention might persuade key actors on Capitol Hill to pass
    a resolution defining the warÕs aims and limits. But if it doesnÕt,
    CongressÕs continued passivity will make it clear that the Court is the
    only remaining check on presidential adventurism.

    Decisive judicial intervention would not lead to a head-on
    confrontation with the White House. The Court would simply rule that
    Mr. Obama has misconstrued the War Powers Resolution, and that the
    sitting presidentÑprobably ObamaÕs successorÑmust obtain Congressional
    approval if he wants to continue hostilities after the 60-day deadline.
    This would force the issue to the top of the legislative agenda, and
    require all sides to hammer out the terms of battle for the next
    commander-in-chiefÑredeeming  the FoundersÕ vision for a new century.

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