Army Captain Sues Obama over ‘illegal war’ against ISIS

In the litany of ways in which President Obama has contravened the United States Constitution, the allegation that he has violated — and continues to do so — the War Powers Resolution of 1973 tends to get lost in the shuffle.

While many support President Obama’s claim that he needs no new legal authority from Congress to continue military engagement against the Islamic State — also known as ISIS, ISIL, and Daesh — in Iraq and Syria, Army Captain Michael Smith disagrees.

“How could I honour my oath when I am fighting a war, even a good war, that the Constitution does not allow, or Congress has not approved?”

The lawsuit grew from an Atlantic piece in which Ackerman laid forth the argument at the heart of the lawsuit. In it, he argued that soldiers would make particularly plaintiffs in such a case.

“After a passage of months, Captain Smith saw it and was troubled by what was going on and then we started talking,” [Yale Law School professor and consultant to Smith] Ackerman said.

The lawsuits rests on five counts.

First, Smith and his lawyers argue that Obama violated the War Powers Resolution, which requires that a president obtain congressional authorization for use of force within 60 days of deploying troops into a hostile situation.

Second, they say he violated the “Take Care” clause of the Constitution by failing to publish a legal justification for the conflict.

“He’s not a lawyer,” Ackerman says. “If he could be directed to a serious and sustained argument, he would be able to read it.” Without that, Smith cannot reasonably be expected to know what his duty is, Ackerman says.

Third and fourth, they say Obama has exceeded his authority under the 2001 and 2002 authorizations of the use of military force. Finally, Smith and his lawyers say that Obama’s campaign against Daesh represents executive overreach under the Constitution.

Smith asks that a judge declare the campaign illegal unless Obama obtains congressional authorization within 30 days and asks that the administration cover his legal fees.

The administration asked for a separate authorization early last year for its Daesh fight, though it had previously argued that the 2001 and 2002 authorizations of the use of military force constituted enough authority for its operations against Daesh due to its links to Al Qaeda, the group to which the 2001 authorization applied.

Capt. Smith makes it clear in his arguments that he supports military action against ISIS; he just wants it approved through Congress.  It is a difficult issue, considering military action to go after Al Qaeda was approved in 2001.  Ultimately the decision will likely come down to whether the courts determine that approval includes other Islamic extremist groups as well.

Capt. Michael Smith, U.S. Army

Source: thestar.com