[pjw] NEWS: Deployed Army captain sues Obama over ISIS fight (Army Times 5/4)

[Peace and Justice Works]

Iraq Affinity Group supporters:

In October, we alerted you to the efforts of Yale Law Professor Bruce 
Ackerman to find an active duty US military person deployed in the "War 
against ISIS" to sue the government for conducting a war that hasn't been 
authorized by Congress.

He has found that person, as noted in the article below. The Army Captain 
is very pro-military action-- which I suppose helps the legal case, but 
means the political outcome could be a vote to support war rather than one 
to end it.

Prof. Ackerman revealed his case in a New York Times Op-ed last week at 
the same time the below Army Times article came out.
http://www.nytimes.com/2016/05/05/opinion/is-americas-war-on-isis-illegal.html

Just to be sure Ackerman wasn't doing this as a political tweak to "get" 
President Obama (as opposed to actually standing on the principles he's 
citing about the Constitutional duty of Congress), I poked around a bit 
and found this interview from October 2014:
<http://onpoint.wbur.org/2014/10/06/war-powers-aumf-constitutional-crisis-obama>

What's interesting about the interview is that the 60 day clock established 
by the War Powers Act was just about to run out and the debate was on 
whether Congress could/should act in an election year. Here we are 19 
months later in _another_ election year and the war rages on. (More info 
about the "boots on the ground" coming tomorrow.)

In the interview, Ackerman says, for what it's worth, that he testified in 
favor or Bill Clinton at his impeachment hearing and helped litigate Bush 
v. Gore for Al Gore. So, I take his approach on this at face value. The 
point of the War Powers Act was to prevent another escalation such as 
the Vietnam "War" spilling into Laos and Cambodia. Seems apt to force a 
vote on a war that's now in Iraq, Syria, Yemen, Libya and to some extent 
Afghanistan.

Let people know this is going on. America was founded (again, for what 
it's worth-- insert white rich men with slaves writing Constitution remark 
here) to avoid having one person be able to declare and enact wars.

dan h
peace and justice works iraq affinity group


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  http://www.armytimes.com/story/military/2016/05/04/deployed-army-captain-sues-obama-over-isis-fight/83942016/
Deployed Army captain sues Obama over ISIS fight
    An Army captain deployed to Kuwait has sued President Obama because he
    believes the war against ISIS is illegal.

Deployed Army captain sues Obama over ISIS fight
    [45]Michelle Tan, Army Times 7:32 p.m. EDT May 4, 2016

    Capt. Nathan Smith, a military intelligence officer deployed to Kuwait,
    is suing President Obama over the legality of the fight against the
    Islamic State terror group.(Photo: Army)

    An Army captain deployed to Kuwait has sued President Obama because he
    believes the war against the Islamic State terror group is illegal,
    reigniting a long-simmering issue between the president and Congress.

    Smith, 28, was commissioned in 2010 and deployed to Afghanistan for
    eight months in 2012. He has been deployed to Kuwait since last fall
    with the Combined Joint Task Force Operation Inherent Resolve, which is
    responsible for overseeing the fight against the Islamic State.Capt.
    Nathan Smith, a military intelligence officer, is seeking "a
    declaration that President ObamaÕs war against ISIS is illegal because
    Congress has not authorized it," according to court documents. The
    suit, first reported by the [48]New York Times, goes on to cite the
    1973 War Powers Resolution and says the president "did not get
    Congress's approval for his war against ISIS in Iraq or Syria within
    the sixty days, but he also did not terminate the war. The war is
    therefore illegal."

    Smith considers ISIS "an army of butchers" and believes that
    participating in the fight against them "is what I signed up to be part
    of when I joined the military," according to [49]court documents.

    However, Smith filed the lawsuit "out of conscience because fighting an
    illegal war forces him to violate his oath to 'preserve, protect, and
    defend' the Constitution," according to the lawsuit.

    A spokesman for the Justice Department declined to comment on the
    lawsuit.

    Obama administration officials, including Defense Secretary Ash Carter,
    have repeatedly said they have all the legal authority they need to
    conduct the ongoing fight against the Islamic State group.

    The campaign against the group, however, has steadily grown from
    airstrikes to deployed trainers to search-and-kill teams. Just this
    Tuesday, a Navy SEAL, Special Warfare Operator 1st Class Charlie
    Keating IV, was killed when ISIS fighters attacked Peshmerga forces in
    northern Iraq.

    As the campaign has grown, there has not been any formal approval from
    Congress, nor an explicit new military force authorization, also known
    as an Authorization for Use of Military Force, against ISIS.

    Instead, Pentagon planners have been proceeding under broadly written
    permissions granted by lawmakers after the Sept. 11, 2001, terrorist
    attacks that allow military action "in order to prevent any future acts
    of international terrorism" against the United States. Critics have
    argued that stretches the 2001 agreement too far.

    "Right now, the president has the legal authority that he needs under
    the 2001 AUMF that Congress passed," White House Press Secretary Josh
    Earnest said in December.

    While they insist they are on sound legal footing, Carter and White
    House officials have repeatedly called for a new authorization for use
    of military force, arguing the move would show American resolve in the
    fight against ISIS.

    A senior administration official, speaking on background, declined to
    comment on pending legal matters, but again on Wednesday renewed calls
    for an Islamic State-specific authorization.

    "Passing an ISIL-specific AUMF with bipartisan support would provide a
    clear signal of unity to the men and women of our armed forces, to our
    allies, and to our enemies," the senior administration official said.

    Obama has sent lawmakers a draft AUMF, sent key leaders to testify
    before Congress, met numerous times with lawmakers from both parties,
    and appealed directly to Congress during his last two State of the
    Union speeches, the official said.

    "Yet more than a year later, Congress has utterly failed to fulfill its
    responsibility," the official said.

    Smith, on his part, is not speaking to the media, said [50]Bruce
    Ackerman, a Yale Law School professor and a consultant for Smith's
    attorney, [51]David Remes. SmithÕs decision to file the lawsuit was "a
    serious decision," said Ackerman, who described the young officer as
    "intelligent, thoughtful."

    Two fundamental issues Smith faced were his conscience and an 1802
    Supreme Court opinion, led by Chief Justice John Marshall, on whether a
    military officer had a duty to disobey illegal orders from his
    commander in chief, Ackerman wrote in an [52]opinion piece in the New
    York Times.

    "As Captain Smith reflected on that decision, he first thought that
    only one path was open to him: As an officer devoted to the
    Constitution, he had an overriding obligation to disobey orders issued
    as part of the Inherent Resolve operation Ñ despite the threat of
    immediate detention and serious punishment if his view of the law was
    ultimately rejected by military tribunals and civilian courts,"
    Ackerman wrote.

    Filing the lawsuit was a way to "resolve this conflict of duty,"
    Ackerman told Army Times.

    "People like Capt. Smith, and IÕm sure there are others, should not
    disobey orders and go to jail and see their careers destroyed, and
    maybe theyÕre right or maybe theyÕre wrong, but they don't have the
    basis to make a fully informed decision," Ackerman said. "This deserved
    consideration in the courts of the United States. What John MarshallÕs
    opinion establishes is that you have an obligation under our system of
    government not to obey illegal commands. This is a very important
    principle. ThatÕs the thing that distinguishes our armed forces."

52. 
http://www.nytimes.com/2016/05/05/opinion/is-americas-war-on-isis-illegal.html?action=click&contentCollection=U.S.&module=RelatedCoverage&region=EndOfArticle&pgtype=article