“In waging war against ISIS, President Obama is misusing limited congressional authorizations for the use of military force as a blank check to conduct a war against enemies of his own choosing, without geographical or temporal boundaries,” reads the lawsuit, filed by Smith and his counsel, human rights lawyer David Remes. Yale Law School professor Bruce Ackerman is a consultant in the suit.
“Congress passed the 1973 War Powers Resolution in response to just such presidential overreach in the Vietnam War, and to protect against such abuses of presidential power in the future,” they argue. Congressional authorizations of military force in 2001 and 2002 are too limited to justify the current campaign against the Islamic State, they say.
Smith joined the military in 2010 because he saw it as “a force for good in the world,” the lawsuit reads. He proudly served in Afghanistan and cheered the administration’s airstrikes on the Islamic State in Iraq and Syria in August and September of 2014. As the effort dragged on, however, he noticed that some at home were worried about presidential overreach.
“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,” he said, according to the suit. “My conscience bothered me.”
The Constitution grants only Congress the authority to declare war, and the War Powers Resolution limits the president’s ability to deploy forces into hostile situations for more than 60 days without congressional approval, Smith argues. As a result, he was conflicted about the engagement.
“How could I honor 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 out 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,” 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 the Islamic State represents executive overreach under the Constitution.
Smith asks that a judge declare the ongoing campaign illegal unless Obama obtains congressional authorization, and he asks that the administration cover his legal fees.
The administration asked for a separate authorization early last year for its ISIS 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 the Islamic State due to its links to al-Qaeda, the group to which the 2001 authorization applied.
Just last month, Obama outlined plans to expand the military’s presence in Syria to as many as 300 troops in order to continue to apply pressure to ISIS, he said. Three service members have died in combat with the Islamic State.
The suit was filed in U.S. District Court for the District of Columbia.