[pjw] NEWS: Captain's effforts to sue over war powers act fail (Wash Times 12/25)

Peace and Justice Works pjw at pjw.info
Mon Jan 16 20:43:02 EST 2017

This news came out on Christmas day and we talked about it last week at 
the Iraq Affinity Group meeting.

In this article describing how President Obama's making war with no 
congressional oversight has laid the foundation for President Trump, they 
reveal that Captain Nathan Smith, who'd tried suing Obama for failing to 
follow the War Powers Act, had his case tossed. The odd logic seems to be 
that he didn't have standing-- not because he is a soldier deployed in the 
field by his commanders, but because he said he would gladly serve in 
Kuwait IF the President obtained Congress' approval. It implies that a 
soldier who is opposed to the wars could still bring action, though, 
sadly, it's frequently the case that the courts don't want to weigh in on 
war, which, y'know, can be a crime against humanity.

dan h
peace and justice works iraq affinity group

Obama evades Congress, stretches war powers in precedent for Trump
By Seth McLaughlin - The Washington Times - Sunday, December 25,

    President Obama took office criticizing the expansive wars fought under
    the 2001 and 2002 authorizations for the use of military force, but
    over the past eight years, he has become attached to the two documents
    and used them to justify expansion of U.S. military action around the

    His campaign to oust Libyan leader Moammar Gadhafi, his halting policy
    toward Syria and, just last month, his expansion of the U.S. commitment
    to fighting al-Shabab in Somalia have all been initiated under the
    legal cover of the 2001 AUMF aimed at punishing al Qaeda for the Sept.
    11 attacks.

    The issue flew under the radar in the presidential race this year, and
    President-elect Donald Trump has given no indication that he plans
    to change course after he takes the oath of office next month, leaving
    matters in a legal gray area.

    A bipartisan group of lawmakers has long demanded that Congress
    reassert itself and claim a say in extended military actions, but
    divisions have prevented Capitol Hill from settling on a replacement Ñ
    undercutting efforts to rewrite the earlier AUMFs.

    Some opponents have begged the courts to step in, saying Mr. ObamaÕs
    fight against the Islamic State stretches his war powers too far.

    But a federal district court ruled last month that Army Capt. Nathan
    Michael Smith lacked standing to sue over the issue, saying it is a
    political matter for the president and Congress to decide free of
    court scrutiny.

    David Remes, Capt. SmithÕs attorney, said the ruling is misguided. He
    argued that the lawsuit aims to bring the president in line with the
    law and warned that the decision Òeffectively blocks off all challenges
    to violations of the War Powers Resolution.Ó

    ÒThe War Powers Resolution put the burden on the president to get
    approval from Congress to wage war,Ó Mr. Remes told The Washington
    Times. ÒIf no one can challenge a presidential war Ñ undertaken without
    the approval of Congress Ñ then we have unlimited war-making

    Mr. Remes is preparing an appeal, but Jennifer Daskal, an associate
    professor of law at American University, told The Times that the
    presidentÕs authority to wage war could be challenged even if Capt.
    SmithÕs appeal fails.

    She noted that Capt. Smith said he supports the goals to fight the
    Islamic State, but if opponents could recruit troops who had moral
    objections, they might be able to force the issue before a judge.

    ÒA future plaintiff could allege a more concrete injury, in the form of
    physical or emotional harm or a firmly held conscientious objection to
    joining the military action, and still have standing to challenge the
    scope of the AUMF,Ó Ms. Daskal said. ÒThe Smith case specifically
    leaves open that possibility.Ó

    The courts have become the center of the debate thanks to inaction on
    Capitol Hill, where a limited number of lawmakers are pushing for
    change and are arguing that Mr. ObamaÕs action has set a dangerous

    Sen. Tim Kaine, Virginia Democrat, has circulated a petition urging
    voters to Òdemand Congress exercise its constitutional duty to put
    a check on the president.Ó

    Mr. Kaine, the Democratic vice presidential nominee this year, also
    dedicated his first postelection speech to the issue. He argued that
    the 2001 authorization that allowed action against the perpetrators of
    the Sept. 11 terrorist attacks has Òstretched way beyondÓ its intended
    purpose and Òis now being used all over the globe against organizations
    that didnÕt even exist when the 9/11 attacks occurred.Ó

    ÒAs this war has expanded into two-plus years Ñ I donÕt know whether
    that would have been the original expectation Ñ with more and more of
    our troops risking and losing their lives far from home, I am concerned
    and again raise something I have raised often on this floor: that there
    is a tacit agreement to avoid debating this war in the one place where
    it ought to be debated, in the halls of Congress,Ó Mr. Kaine
    recently said on the floor of the Senate.

    Sen. Ben Sasse, Nebraska Republican, applauded Mr. KaineÕs remarks.
    Others, including Sen. Rand Paul, Kentucky Republican, and Sen.
    Christopher Murphy, Connecticut Democrat, have vowed to push
    Congress to revisit the issue.

    Mr. Paul, though, said the number of lawmakers who believe in the
    provision of the Constitution is limited.

    ÒThere are a few of us that believe we should authorize war, and the
    vast majority either donÕt care or simply think it is messy so they
    donÕt want to get involved,Ó he said, adding that lawmakers cannot
    agree on what a reworked AUMF would look like.

    Mr. Obama offered a plan for military action against the Islamic State
    in 2015 that would have scrapped the 2001 and 2001 authorizations and
    sunset after three years.

    But Republicans felt the plan was too restrictive, while Democrats
    worried it was too broad and would lead to another war in the Middle

    Mr. Murphy said it is hard to imagine the next Congress having
    more interest in the debate.

    ÒThat is a needle that we should thread, but it is very difficult to
    thread, and it is hard to figure out how this new administration is
    going to be able to do something that the Obama administration
    couldnÕt,Ó Mr. Murphy said. ÒI am going to argue loudly for an AUMF,
    but I am also sober about the prospects given TrumpÕs lack of
    interest in this subject.Ó

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