An abiding shame of Washington was revealed by the lawsuit filed on May 4 by Nathan Michael Smith. The Army captain argues that the U.S. war against the Islamic State is illegal because Congress did not authorize it. And therein lies the shame. Congress has yet to grant President Obama’s year-old request for a new Authorization for Use of Military Force (AUMF). And to make matters worse, it has failed to confirm the man Obama chose to lead Smith’s branch of the armed forces.

Eric Fanning was first nominated secretary of the Army on Sept. 18, 2015. That’s 236 days ago. He was made acting secretary when his predecessor stepped down last November. But Fanning was forced to step aside last January when procedural objections were raised about his being in the job before being confirmed. His nomination sailed out of the Senate armed services committee on March 10. But there has been no floor vote because Sen. Pat Roberts (R-Kan.) put a hold on Fanning’s nomination.

The reason has nothing to do with Fanning. Roberts is ticked off that Obama wants to close the terrorist prison at Guantanamo and bring the detainees to the United States. Sen. John McCain (R-Ariz.) went to the Senate floor on April 28 to implore Roberts to lift the hold. “Mr. Fanning is clearly qualified,” McCain said after rattling off the nominee’s impressive military career to date and making it plain that the president’s Guantanamo plans were going nowhere. In response, Roberts said, “I want to make it very clear, as a veteran, a Marine, I support the nominee for this post.” The Kansas Republican even acknowledged, “My hold on Eric Fanning’s nomination is not in relation to his capabilities, his expertise or his character.” And while Roberts insisted that his hold on Fanning’s nomination was “certainly not intended to bring undue stress to our United States Army,” the largest branch of the armed forces remains without a permanent chief. His concern is not needed. Removing his hold on the Fanning nomination is. 

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What’s happening (or not happening, in this case) with Fanning is part of  larger inaction on Obama’s efforts against the Islamic State. Prime example: the president’s call for a new AUMF. To justify its fight against the Islamic State, the administration has admittedly stretched the legal limits of the 2002 AUMF for the fight against al-Qaeda. Obama has not only repeatedly asked Congress to give him an AUMF specifically aimed at taking down the Islamic State, but he also sent it draft language in February 2015 to consider. Nothing.

Smith, who joined the military in 2010 and served in Afghanistan, calls the current war against the Islamic State “justified both militarily and morally.” But, while his lawsuit is against the commander in chief, he takes direct aim at Congress.

Like his fellow soldiers at Camp Arifjan, Captain Smith closely follows the news. He reports: “while we were all cheering every airstrike and every setback for ISIS, I was also noticing that people at home were torn about whether President Obama should be carrying out this war without proper authorization from Congress. I began to wonder, ‘Is this the Administration’s war, or is it America’s war?’ The Constitution tells us that Congress is supposed to answer that question, but Congress is AWOL.”

Being charged with AWOL is a serious offense in the military. To have it leveled by a member of the armed services against Congress is damning. And in this case it is definitely deserved.

Follow Jonathan on Twitter: @Capehartj

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