[pjw] UPDATE: Attempting to Dodge Suit, White House Argues Funding Makes War Legal (CommonDreams 7/13)
Peace and Justice Works
pjw at pjw.info
Sun Jul 17 14:45:04 EDT 2016
In May, we informed you about Captain Nathan Smith's lawsuit against the
US for deploying him to a war zone with no congressional authorization.
This is the latest news on the case, in which the government argues that
Congress doesn't have to declare war (or utilize the War Powers act and
pass an Authorization for Use of Military Force), but merely approving
funds for such deployments is a de facto declaration.
While I agree on a philosophical level-- and blame many of our
congresspeople who have voted for funds even though they say they oppose
the wars-- I don't think that's a solid legal argument. But I'm not the
judge in this case.
See you tomorrow night at the IAG meeting?
peace and justice works iraq affinity group
---------- Forwarded message ----------
Date: Sat, 16 Jul 2016 20:29:32 -0700 (PDT)
From: Peace and Justice Works <pjw at pjw.info>
To: Peace and Justice Works <pjw at pjw.info>
Subject: ***In Attempt to Dodge Suit,
White House Argues Funding War Makes War Legal | Common Dreams 7/13
In Attempt to Dodge Suit, White House Argues Funding War Makes War Legal
Published on Wednesday, July 13, 2016 by Common Dreams
U.S. Army captain sued President Obama over legality of sprawling ISIS
by Nika Knight, staff writer
A lawsuit filed earlier this year charging President Barack Obama with
waging an illegal war against the Islamic State (or ISIS) was met on
Tuesday with a motion from the Obama administration asking the court to
In its motion to dismiss (pdf), the administration argues that
congressional funding for the war amounts to congressional approval for
The lawsuit (pdf) was filed in U.S. district court by Capt.
Nathan Michael Smith, an intelligence official stationed in Kuwait, in
May. Smith has been assigned to work for "Operation Inherent Resolve,"
the administration's name for the nebulous conflict against the
terrorist group ISIS.
"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?"
Smith wrote. "To honor my oath, I am asking the court to tell the
president that he must get proper authority from Congress, under the
War Powers Resolution, to wage the war against ISIS in Iraq and Syria."
According to the 1973 War Powers Resolution, "when the President
introduces United States armed forces into hostilities, or into
situations where hostilities are imminent," Smith's lawsuit reads, "he
must either get approval from Congress within sixty days to continue
the operation, in the form of a declaration of war or specific
statutory authorization, or he must terminate the operation within the
thirty days after the sixty-day period has expired."
The Obama administration has justified the legality of the war on ISIS
by relying on the Authorization for the Use Military Force (AUMF)
resolution, passed by Congress in the immediate aftermath of September
The single sentence, consisting of only 60 words, has now been relied
upon by first President George W. Bush and now Obama to justify the
unending wars waged by the U.S. in the 21st century.
The AUMF reads in full:
That the President is authorized to use all necessary and
appropriate force against those nations, organizations, or persons
he determines planned, authorized, committed, or aided the terrorist
attacks that occurred on September 11, 2001, or harbored such
organizations or persons in order to prevent any future acts of
international terrorism against the United States by such nations,
organizations or persons.
Those 60 words gave Bush far-reaching powers to combat forces
associated with Al-Qaeda, once his administration determined the
terrorist organization was responsible for the September 11 attacks.
But ISIS is an enemy group of Al-Qaeda, and it remains therefore
unclear to many legal observers whether the AUMF technically applies to
the U.S. combat operations against that group. That has not prevented
the Obama administration from pursuing and ramping up U.S.
involvement in the conflict, however.
As Buzzfeed's Gregory Johnson reported back in 2014, "Several of
the lawyers I talked to, officials from both the Bush and Obama
administrations, spoke eloquently and at great length about the limits
of the AUMF and being constrained by the law[...] But none of them were
able to point to a case in which the U.S. knew of a terrorist but
couldn't target him because it lacked the legal authority. Each time
the president wanted to kill someone, his lawyers found the authority
embedded somewhere in those 60 words."
It is this authority that Smith's lawsuit is challenging.
And in fact, Obama appears to have recognized--at least somewhat-- the
lack of clear legal authorization for the conflict, as he has requested
several times that Congress issue an official declaration of war
against ISIS and issue a new AUMF.
"There appears to be no real opposition to the war effort on Capitol
Hill," The Atlantic's Garret Epps notes, "But Congress has not held
hearings or a vote of any kind."
Yet the White House has also argued that Congressional approval for
the war is unnecessary, because the 2001 AUMF provides legal cover for
it. Attempts to repeal the AUMF have failed.
On Tuesday, the administration argued that the case should be dismissed
The President has determined that he has the authority to take
military action against ISIL, and Congress has ratified that
determination by appropriating billions of dollars in support of the
military operation. Congress has made these funds available over the
course of two budget cycles, in connection with close oversight of
the operationÕs progress, and with knowledge of the authority under
which the operation is being conducted. The political branches have
exercised their respective constitutional roles, and their joint
effort in support of Operation Inherent Resolve is precisely the
kind of mutual participation that courts have looked to in
dismissing war powers challenges under the political question
The New York Times observed that this justification for the war on
ISIS amounts to the "most extensive public explanation yet of [the
Obama administration's] war powers theory."
Yet as Epps wrote last month, "The relief Smith and other soldiers
are actually seeking--and one they richly deserve--would be a decision
by their political leaders to treat the Constitution, the nation's
commitment to military force, and the lives of American personnel as a
serious matters, worthy of sustained attention."
And as Earth Institute director Jeffrey D. Sachs argued in his
remembrance of peace activist Father Daniel Berrigan, "America is quick
to ask other countries to repent their sins and to remember their evil
deeds. It is quick to haul other leaders to the International Criminal
Court. But it is chronically incapable of looking inward."
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