[pjw] NEWS: Justice Department says wars off limits to court review (Wash Examiner 10/27)

Peace and Justice Works pjw at pjw.info
Sun Nov 19 19:28:40 EST 2017

At the Iraq Affinity Group meeting Monday, we went over quite a few 
articles of interest. The below article showing that the Justice 
Department believes no court is _allowed_ to review decisions about war 
was one of the most chilling. (Never mind that more often than not, the 
courts-- especially the Supreme Court-- decline on their own to wade into 
decisions about war.)

Also, we thought people might be interested in an offbeat bit of good 
news: Marvel Comics fans pushed back against an attempt to weave military 
contractors into a comic book story line, and Marvel dropped the project.

  Whap! Pow! Fans Boot Defense Contractor Out of Marvel Comics
  The battle to pry militarism from pop culture continues.
    By Jason C. Ditz October 11, 2017

So, there's that.

OK, that's all for now.
dan h
peace and justice works iraq affinity group

Trump Justice Department: Wars are off limits to court review
     by [38]Steven Nelson | [39]Oct 27, 2017, 4:34 PM [

     A Trump administration attorney said Friday that federal courts cannot
     evaluate whether a president is waging an illegal war, even if the war
     clearly has no grounding in a congressional authorization of force and
     someone directly impacted sues.

     The claim was made during oral arguments in an appeal filed by Nathan
     Michael Smith, a now-former Army intelligence analyst who sued last
     year claiming former President Barack Obama was illegally fighting
     Islamic State terrorists without an authorization for use of military
     force, or AUMF, from Congress.

     Smith, who left active-duty military service in June, supports fighting
     the jihadi group, but argues doing so has not been properly authorized
     by Congress. ?For me, it?s not a partisan issue,? he told the
     Washington Examiner outside a courtroom in the nation's capital.
     "Procedure matters, if we're a nation of laws.?

     Judges considered various arguments that Smith?s case should be thrown
     out, including that he has no standing to sue ? a matter focused on
     whether a coerced choice between violating his oath of office or
     risking court martial is sufficient.

     Another government argument claims the war's legality is a political
     question unsuitable for courts to review, and therefore the case must
     be dismissed.

     Smith argues he has cleared the hurdles required to sue and that on the
     merits he's correct in claiming the administration is improperly
     relying on war authorizations from 2001 against Al Qaeda and 2002
     against Saddam Hussein to justify current operations in Iraq and Syria.

     Judge Thomas Griffith, one of three members on the panel of the U.S.
     Court of Appeals for the D.C. Circuit, expressed concern about
     accepting the government?s argument that courts cannot rule on the

     ?What if the president were to initiate hostilities with a nation or
     organization that wasn?t plausibly within these AUMFs, would that be
     subject to review?? Griffith asked.

     ?No, I think, is the short answer. No,? said Thomas Byron, an
     experienced Justice Department attorney.

     Griffith, exploring potential consequences, asked: ?Under what
     circumstances would the judiciary be entitled to limit the president?s
     exercise of his war powers? Help me understand that. It sounds to me
     like you?re saying none.?

    ?I think what I?m saying is we haven?t seen it yet,? Byron said.

     The judge, pressing further, asked whether AUMFs actually placed any
     constraints on the president.

     ?Is there any example where the president initiates hostilities that
     are beyond the scope of the AUMF and a plaintiff with standing comes
     here to challenge it, do we have authority to enforce the AUMF against
     the president?? the judge asked.

     ?I think probably not, and there are many reasons as we discussed
     today,? Byron said.

     Later, the government attorney said, ?It can be enforced but not in
     court," arguing the proper remedy for illegal wars is congressional

     Another judge on the panel, Raymond Randolph, recalled an 8-1 U.S.
     Supreme Court ruling in 1973 that [45]struck down an injunction against
     President Richard Nixon's bombing of Cambodia during the Vietnam War.
     He noted that Congress stepped in, [46]forcing an end to the bombing.

     The secret bombing of Cambodia prompted Congress to pass the 1973 War
     Powers Resolution, which requires presidents to gain congressional
     authorization within 60 days of initiating hostilities ? the
     requirement Smith says Obama and now Trump violated.

     Attorneys for Smith said it would be troubling if judges found that
     presidential war-making is off limits.

     Yale Law Professor Bruce Ackerman ? who [47]theorized in 2015 that an
     active-duty soldier could overcome standing questions, prompting Smith
     to contact him ? warned the stakes are high.

     ?If the court fails to act in this case, it will have established a
     precedent that permits future presidents of the United States with a
     mere assertion [to declare] that one or another terrorist group,
     without any provision of evidence to anybody, is an object of war.
     Forever,? he said in closing remarks.

     Attorney David Remes, who also is representing Smith, said he was
     concerned specifically about Trump.

     ?If the court goes the other way, we have a president who is completely
     unpredictable, who can?t be assumed to exercise his power in a
     responsible way,? Remes told the Washington Examiner. ?The idea that
     President Trump has unlimited war-making powers is absolutely

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