In Attempt to Dodge Suit, White House Argues Funding War Makes War Legal

[rug]

U.S. Army captain sued President Obama over legality of sprawling ISIS conflict

by Nika Knight, staff writer

A lawsuit filed earlier this year charging President Barack Obama with waging an illegal war against the Islamic State (or ISIS) was met on Tuesday with a motion from the Obama administration asking the court to dismiss it.

In its motion to dismiss (pdf), the administration argues that Congressional funding for the war amounts to Congressional approval for it.

The lawsuit (pdf) was filed in U.S. district court by Capt. Nathan Michael Smith, an intelligence official stationed in Kuwait, in May. Smith has been assigned to work for "Operation Inherent Resolve," the administration's name for the nebulous conflict against the terrorist group ISIS.

"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?" Smith wrote. "To honor my oath, I am asking the court to tell the president that he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS in Iraq and Syria."

http://www.commondreams.org/news/2016/07/13/attempt-dodge-suit-white-house-argues-funding-war-makes-war-legal

Complaint: https://www.documentcloud.org/documents/2823282-Smith-Complaint-as-Filed.html

Motion to Dismiss: https://www.documentcloud.org/documents/2991414-Smith-v-Obama-Govt-Motion-to-Dismiss.html

https://en.wikipedia.org/wiki/David_H._Remes

[struggle4progress]

1. I'm not so very enthusiastic about military action but

the idea, that continued substantial congressional funding for a military operation implies congressional approval for that operation, isn't a big stretch

[rug]

2. If done without congressional approval, what's the legal authority for it?

[struggle4progress]

4. I expect the issues here are somewhat murky. Post-WWII, the political mood has been that

the President needs some ability to respond to events. I should have liked to see Nixon tried for war crimes for invading Cambodia, and Reagan tried for war crimes for waging a privately-funded war against Central America from the White House basement after Congress cut off funding for those little adventures. Ultimately, of course, we cannot accept any view that the President is somehow exempt from the rule of law, but the courts will be reluctant to see unnecessary bright lines governing relations between the President and Congress, whenever the questions can be considered political-in-nature

It is one thing, if Congress itself wants to hold tightly to its Constitutional prerogative to declare war, or to such lesser-included-powers as might be reflected in (say) the War Powers Resolution of 1973 -- and it is an entirely different thing, if Congress knowingly continues to fund a military campaign, without actually approving the campaign by an explicit separate declaration. In the former case, the courts clearly ought to defend the Constitutional powers of the Congress -- but in the latter case, the courts will defer to a long-standing doctrine proscribing juridical intervention in political questions: the current Congress is not required to handle every political issue, associated with the scope of its war-making powers, in the exact way that a prior Congress might have, since no legislature can bind a later one

Throughout much of my life, Congress has shown a somewhat cowardly reluctance to defend its prerogative to declare war, preferring to pass an authorizing resolution now and again, followed by seemingly endless funding. This being current practice, however lamentably, one must naturally read the funding itself as representing Congressional authorization -- and I cannot imagine that the courts will find that individual citizens, or even those enlisted, have standing to demand the President follow a certain definite procedure, so long as Congress does not itself insist on that

[rug]

6. The problem is the military adventures of the last 13 years have not simply been responses.

Most have been military actions by choice, in pursuit of an amorphous policy of combating, alternatively, terror or dictatorship.

The "war on terror" has been as ad hoc as the "war on drugs". And as effective.

If it weren't consuming so many lives, our and theirs, and nearly a trillion dollars, it would be a curious case study of government.

No wonder people are pissed off.

[struggle4progress]

7. It goes back much further than that: the Vietnam war escalation was justified by blarney

about the Gulf of Tonkin; Reagan's genocidal Central American operations were justified by bullshizz about the threat of Cuban commandos marching up to the Texas border; and the Bush I invasion of Iraq was replete with carefully-crafted hallucinations of Saddam's troops murdering innocent little incubator babies

The actual structure of the economy plays a large role in what mythologies are repeated often and loudly enough to impress the public mind. Fighting back effectively takes hard work over a long time

[nationalize the fed]

5. Few care anymore

That's a big reason the US has become what it is

This Congresswoman cares, and just look at what even some in the party say about her.

The US is about war, deceit and a "New World Order" now (no one even cares when Joe Biden says it's time to actually create a new world order).

IN the next 24 hours, the US will borrow another ~$200 million dollars to spend chasing a bunch of bearded rebels around sand dunes 8,000 miles away- the biggest ripoff in history. There are no protests, and no real opposition. It's a New American Century. But Women can serve on the front line.

[Nuclear Unicorn]

3. This is a bad precedent. I doubt Congress, even this Congress, would decline to grant an AUMF

against ISIS; especially in an election year. However, this gives future administrations -- Republican ones -- a free hand. Between this and Libya the War Powers Resolution is pretty much dead and it was a Democratic president elected to end wars who killed it.