[pjw] UPDATE: Attempting to Dodge Suit, White House Argues Funding Makes War Legal (CommonDreams 7/13)

[Peace and Justice Works]

Friends
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?
dan h
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

   http://www.commondreams.org/news/2016/07/13/attempt-dodge-suit-white-house-argues-funding-war-makes-war-legal
In Attempt to Dodge Suit, White House Argues Funding War Makes War Legal
    Published on   Wednesday, July 13, 2016   by  [14]Common Dreams
    U.S. Army captain sued President Obama over legality of sprawling ISIS
    conflict
    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
    dismiss it.

    In its [17]motion to dismiss (pdf), the administration argues that
    congressional funding for the war amounts to congressional approval for
    it.

    The [18]lawsuit (pdf) was [19]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[20] 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
    11, 2001.

    The single sentence, consisting of only 60 words, has now been relied
    upon by first President George W. Bush and now Obama to [21]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 [22]ramping [23]up U.S.
    involvement in the conflict, however.

    As Buzzfeed's Gregory Johnson [24]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 [25]new AUMF.

    "There appears to be no real opposition to the war effort on Capitol
    Hill," The Atlantic's Garret Epps [26]notes, "But Congress has not held
    hearings or a vote of any kind."

    Yet the White House has also [27]argued that Congressional approval for
    the war is unnecessary, because the 2001 AUMF provides legal cover for
    it. Attempts to [28]repeal the AUMF have failed.

    On Tuesday, the administration argued that the case should be dismissed
    because,

      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
      doctrine.

    The New York Times [29]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 [30]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 [31]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."

   16. 
http://commons.commondreams.org/t/in-attempt-to-dodge-suit-white-house-argues-funding-war-makes-war-legal/25062
   17. 
https://www.documentcloud.org/documents/2991414-Smith-v-Obama-Govt-Motion-to-Dismiss.html
   18. 
https://www.documentcloud.org/documents/2823282-Smith-Complaint-as-Filed.html
   19. 
http://thehill.com/policy/defense/278697-army-captain-sues-obama-over-lack-of-isis-war-authorization
   20. https://en.wikipedia.org/wiki/War_Powers_Resolution
   21. 
http://www.commondreams.org/news/2015/02/13/calls-grow-reject-aumf-permits-waging-war-all-over-world
   22. 
http://www.commondreams.org/news/2016/07/13/news/2016/07/11/yup-more-mission-creep-us-defense-announces-500-more-endless-war
   23. 
http://www.commondreams.org/news/2016/06/10/deeper-and-deeper-war-obama-authorizes-more-military-force-afghanistan
   24. 
https://www.buzzfeed.com/gregorydjohnsen/60-words-and-a-war-without-end-the-untold-story-of-the-most?utm_term=.vglOOpEJX#.avgKKn925
   25. 
http://www.commondreams.org/news/2015/02/10/obama-seeks-broad-powers-wage-geographically-limitless-war-isis
   26. 
http://www.theatlantic.com/politics/archive/2016/06/war-powers-irresolution/485021/
   27. 
http://www.nytimes.com/2014/09/11/world/middleeast/white-house-invites-congress-to-approve-isis-strikes-but-says-it-isnt-necessary.html
   28. 
http://www.commondreams.org/news/2016/05/18/thanks-us-congress-endless-war-will-not-end
   29. http://www.nytimes.com/2016/07/13/us/isis-war-powers-obama-lawsuit.html
   30. 
http://www.theatlantic.com/politics/archive/2016/06/war-powers-irresolution/485021/
   31. http://www.commondreams.org/views/2016/05/02/america-unrepentant-still