Constitution Check: Has the U.S. war against ISIS in Syria been illegal from the start?

Constitution Daily Supreme Court correspondent Lyle Denniston looks at a lawsuit from an Army officer that contests the legality of military actions against taken against the Islamic State.

THE STATEMENT AT ISSUE:

“August 8, 2014, is generally understood as the beginning of the current war against the Islamic State [in Syria].  This implies that the 60-day deadline [under the War Powers Resolution] for Congress’s explicit authorization lapsed on October 7 [2014], and in the absence of such a mandate, the required moment for withdrawal was November 6 [2014].  But the President failed, during this critical period, to gain a new Authorization for the Use of Force….These undisputed facts suffice to establish a prima facie violation of the War Powers Resolution.” – Excerpt from a legal brief filed in federal court in Washington, D.C., on August 18, by lawyers for Army Captain Nathan Michael Smith, who has sued President Obama to test the legality of the U.S. military action against the Islamic State.  The brief was filed in response to a government effort to have the case dismissed.  The government will file a further brief on September 14 before U.S. District Judge Colleen Kollar-Kotelly makes a decision.

WE CHECKED THE CONSTITUTION, AND…

America has now had more than four decades of experience with Congress’s effort to reclaim the primary constitutional role of deciding when the U.S. military can be sent into war or its equivalent. Still, no one in either Congress or the Executive Branch is pleased with the way that effort, in the War Powers Resolution of 1973, has worked out.  President Obama’s use of force against the Islamic State in Syria shows that the mutual frustration continues.

An Army captain, just back in the States from a tour of duty in Kuwait during the action against ISIS (formally called “Operation Inherent Resolve”), is pressing ahead in federal court with his claim that the war is illegal, and thus he was deployed to serve in it under illegal orders.  He is not seeking a court order to immediately end the conflict, but rather a ruling that the War Powers Resolution must be set in motion to end it unless Congress specifically gives its authorization.

Under that 1973 mandate, a president must notify Congress within 48 hours after ordering U.S. troops into military action.  The operation can continue for 90 days while Congress considers whether to formally authorize it.  If it does not do so within that time span, the president has 30 more days to wind down the involvement of military forces and bring them home.

Captain Smith’s lawyers are now arguing that the operation against ISIS in Syria has now entered its third year, and has been illegal from the start because Congress has never approved it.

In the operation against Syria, President Obama and his aides have insisted that there is no need for a new authorization from Congress, since they claim continuing effect from formal authorizations given in 2001 to react to the September 11 terrorist attacks and in 2002 to launch the invasion of Iraq to topple the dictatorship of Saddam Hussein.

Last month, the Obama administration's lawyers filed their formal request that Captain Smith’s case be dismissed.  Besides making a series of procedural arguments, and a constitutional claim that the dispute is one for the President and Congress and not the courts, the government lawyers laid out their full legal argument that Congress has done enough to show that it supports the military campaign against ISIS.

Last week, it was the turn of Captain Smith’s lawyers to file a brief seeking to keep his case going.  They did so with a full defense of what he personally has at stake – obey illegal orders to take part in the war or risk being imprisoned for failing to follow orders – and a sweeping legal counter-attack on the White House’s arguments.

Although the captain has just returned home and is now assigned to Fort Hood in Texas, his lawyers contended that he is a career officer and may be re-deployed in the future to take part in illegal military operations, and, in any event, his case is the kind that should be allowed to proceed because the courts did not have time to rule on his challenge until after he returned to the U.S.

His legal right to test the legality of orders from the Commander in Chief, his attorneys claimed, was established by the Supreme Court as long ago as 1804, when then-Chief Justice John Marshall wrote for the court that a military officer must obey only the orders that Congress has given the president the authority to issue, not military orders that go further than that.

The legal brief sought to make the case that President Obama, beginning with the bombing of Libya in 2011 and following that with the war against ISIS, is trying to stretch the war-making powers of the presidency further than any other Commander in Chief has done since the War Powers Resolution was enacted.

To the presidential argument that Congress has actually approved the ISIS operation by approving funding bills, the captain’s legal filing argued that Congress itself has said repeatedly that its funding legislation cannot be used as a substitute for a clear and distinct authorization to engage in military operations.  Congress, the brief noted, has added to all of its military spending bills in recent years the specific proviso that the power to spend the money does not include an implied grant of power under the War Powers Resolution.

The White House brief in the case also had contended that, if such provisos are taken to mean a lack of authorization, then that kind of language is itself unconstitutional because it tries to use the War Powers Resolution to limit what future Congresses can do to approve military spending.  Captain Smith’s lawyers flatly dispute that, arguing that Congress at any time in the future could repeal the Resolution, to end the need for specific authorizations for future combat.

Captain Smith has the support in the case of the Constitution Project, a liberal advocacy group on constitutional issues, joined by Michael J. Glennon, a professor of international law at the Fletcher School of Law and Diplomacy, who was a Senate legal aide at the time the War Powers Resolution was enacted.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.