Last week, Nathan Michael Smith, a U.S. Army Captain, sued his commander-in-chief, President Barack Obama, claiming that the war against ISIS is illegal because Congress has yet to authorize it.
In court papers filed in U.S. District Court for the District of Columbia, Smith, stationed at the command hub in Kuwait at the center of the battle against ISIS in Iraq and Syria, argues that the Obama administration has been fighting an illegal war since Aug. 8, 2014, therefore violating Smith’s oath to “preserve, protect, and defend the Constitution.”
Smith, who joined the Army in 2010, cites the Vietnam War-inspired 1973 War Powers Resolution stipulating that the president has up to 60 days to involve armed forces in a conflict before ceasing military action if Congress does not act within 30 days.
“The President did not get Congress’s approval for his war against ISIS in Iraq or Syria within the sixty days, but he also did not terminate the war,” Smith’s suit states. “The war is therefore illegal.”
This is not the first time the legality of Obama’s unauthorized war has been scrutinized.
Several members of Congress have criticized their colleagues for failing to hold a single vote on the war and have also questioned Obama’s own legal interpretation claiming existing law permits him to fight ISIS.
Since the White House began bombing ISIS positions in Iraq—and later in Syria—in August 2014, the administration has presented both the 2001 and 2002 authorizations to use military force to justify its war on the so-called Islamic State. But critics say both versions are outdated and overbroad.
The 2001 AUMF, for example, was enacted shortly after the Sept. 11, 2001 attacks to give then-President George W. Bush the power to target those responsible for killing nearly 3,000 Americans on US soil—meaning al Qaeda. The 2002 AUMF essentially authorized the US to go to war with Iraq.
In fact, Obama’s own National Security Adviser, Susan Rice, sent a letter to then-House Speaker John Boehner (R-OH) in 2014 characterizing the 2002 authorization as “outdated” and called for it to be repealed.
As the war has dragged on, the military has bombed ISIS targets while Obama has also deployed troops to Syria, which contradicts his past statements that he would not put soldiers on the ground in the battle-scarred region.
The president has not only used the 2001 AUMF to legalize unauthorized wars but also to justify drone strikes across the Middle East and Africa. The highest profile case involved a drone strike that killed a US citizen in Yemen who had become a radical cleric. That targeted strike also killed Samir Khan, former Westbury, L.I., resident who had become editor of al Qaeda’s propaganda magazine. The so-called drone memo approving the strike, which the administration fought in court to keep secret, revealed that the cleric was the intended target, not the editor.
Although Smith is now suing Obama, the Army captain said in a letter accompanying the suit that he “was ready for action” after the president ordered air strikes against ISIS in 2014.
“In my opinion,” Smith wrote, “the operation is justified both militarily and morally. This is what I signed up to be part of when I joined the military.”
Capt. Smith holds the so-called Islamic State in contempt.
“They are an army of butchers,” he said. “Their savagery is sickening.”
Smith comes from a family with three generations of military officers, but he says he grew concerned once people back home began questioning the legality of the war. In his suit, he wrote, “I began to wonder, ‘Is this the Administration’s war, or is it America’s war?’”
Given the lack of action from elected officials, Smith says he hopes that the court will order the president to get proper authority from Congress to fight ISIS.
The suit was reportedly inspired by an article published last August in The Atlantic by Yale law professor Bruce Ackerman that suggested US soldiers have the legal standing to challenge a war they deem illegitimate.
“Existing case-law establishes that individual soldiers can go to court if they are ordered into a combat zone to fight a war that they believe is unconstitutional,” Ackerman wrote.
In an Op-Ed for The New York Times published last week, Ackerman doubled down on his claim and backed the suit brought by Smith, whom he’s serving as a consultant in the case.
“My aim is simply to insist that Captain Smith is right to believe that the federal courts provide the proper forum for relieving him, and other conscientious soldiers, of the terrible dilemma posed by their oaths of office,” he wrote.
For his part, Obama proposed his own AUMF in February 2014 that would sunset after three years. But Congress still has not voted on it. And when Rep. Adam Schiff (D-Calif), a critic of Congress’ refusal to vote on the war, proposed a measure that would have forced his colleagues to hold a vote on the AUMF’s merits, it failed.
Now Smith believes it is his duty to force the White House and Congress to act.
“The Constitution tells us that Congress is supposed to answer that question,” he wrote. “But Congress is AWOL.”
(Featured photo credit: White House/Pete Souza)