TCP Asks Court to Back Army Officer’s Claim that War against ISIL is Illegal

A federal judge should rule in favor of the Army officer challenging the legality of the war against ISIL because President Obama has not received specific congressional authorization for it, TCP argued in a friend-of-the-court brief submitted to the U.S. District Court for the District of Columbia on August 19.  The court accepted the brief, which was prepared with assistance from Lewis Baach PLLC, three days later.

Capt. Nathan Michael Smith, who is deployed to Kuwait as an intelligence officer, argues in his lawsuit that the president lacks the authority  for using force against the Islamic State, also known as ISIL or ISIS, because he failed to get congressional authorization under the War Powers Resolution of 1973.  The Obama administration has asked the court to dismiss the suit.

“The principles in question could hardly be clearer, or more important.  They concern the most fundamental question that the Nation can face: whether the peoples’ elected representatives have power to restrict [e]xecutive war-making,” the TCP brief says.

The brief recounts the more than 200 year history of the courts clearly finding that the Constitution gives Congress the sole power to authorize war.  It also examines specific provisions of the War Powers Resolution that preclude the president from engaging in armed hostilities for more than 90 days without a clear statement of congressional intent.

The Obama administration has asserted that it has the ability to the conduct the campaign against ISIL because of the 2001 authorization to use force against those responsible for the September 11 terrorist attacks and the 2002 statute authorizing the use of force against Sadaam Hussein’s Iraq.  However, “[e]ach of those AUMFs authorized use of force in different conflicts, against different enemies, under entirely different circumstances,” TCP argues.

In pressing the court to dismiss the case, the Obama administration claims that Smith’s lawsuit represents a political question not ripe for judicial intervention.  TCP’s brief counters that Smith is only asking the court to “enforce his statutory right not to be ordered into these hostilities absent a clear statement by Congress authorizing the introduction of the United States armed forces into these specific hostilities,” calling such an action “a familiar judicial exercise.”

TCP was joined in its friend-of-the-court brief by Michael J. Glennon, who is a professor at the Fletcher School of Law and Diplomacy at Tufts University and a member of TCP’s War Powers Committee.  In 1973, he served as counsel to the Senate members of the congressional conference that reconciled House and Senate versions of the War Powers Resolution.

TCP has consistently maintained that Obama needs congressional permission to continue the war against ISIL.

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