Today, David Remes and Bruce Ackerman, the lawyers representing an army captain who is suing President Obama over the legality of the armed conflict against the Islamic State, filed a lengthy brief – the plaintiff’s opposition to the government’s motion to dismiss the case. In it, they seek to advance their arguments both that the captain, Nathan Michael Smith, has legal standing to bring the case, and that they are right on the merits that the ISIS war lacks proper and necessary Congressional authorization. They also filed an affidavit by several scholars of Islamic law and jihadi movements making the case that the split between core Al Qaeda and its former Iraq affiliate, which grew into ISIS, was older and deeper than the Obama administration acknowledges. I am embedding their brief below.
In Power Wars, Chapter 12 (“The Tug of War”), section 15 (“Extending the 9/11 War”), I reported out the backstory to how Obama came to embrace this controversial legal position. In the summer of 2014, before the U.S. started bombing ISIS, Obama’s White House Counsel, Neil Eggleston, and the then top-lawyer for the National Security Council, Brian Egan, and the rest of the interagency lawyers group developed two theories. They considered each to be viable but also to have its own downside. One was to treat the intervention as a new phase in the existing war Congress had authorized against the 9/11 perpetrators, which would solve the domestic legal problem but would likely be criticized as a stretch because ISIS and Al Qaeda were now at odds. (The argument was that the post-Osama bin Laden split between core Al Qaeda and ISIS into successor factions that were both still fighting the US, even if they were also at odds with each other, did not abrogate the US’s existing authority to keep fighting each.) The other was to treat it as a brand-new conflict, but then if Congress did not vote to authorize it within 60 days, it could set up a repetition of the War Powers Resolution fiasco with Libya three years earlier.
When they presented this choice to Obama in a Situation Room meeting, portraying both theories as legally available or defensible options, Obama opted for the first theory, knowing he would be criticized for it. The decision to take that aggressive stance turned, as it often did in executive power deliberations in the Obama era, on the White House’s belief that Congress, in the Tea Party Republican era, was unable to function as a competent governing partner. Even though there was an emergency and Republicans were mostly all for getting more aggressive against Islamist terrorists in the Middle East, nobody thought that it was realistic to expect Congress — especially the GOP-controlled House — to move and vote on a new authorization to use military force before the War Powers Resolution’s 60-day clock would expire in October. So Obama went with the “ISIS war=Al Qaeda war” theory.
That was indeed controversial. Yale Law School’s Bruce Ackerman penned a column in The Atlantic last summer, a year into the conflict, saying its biggest casualty had been the Constitution because Obama, by waging the conflict with legitimate authorization, and Congress, by not bothering to assert its role, “threaten to destroy all serious restraints against open-ended war-making by the commander-in-chief.” He said a soldier deployed to wage the conflict could have legal standing to put the question before the Supreme Court; that led to the lawsuit by Captain Smith, an intelligence officer then stationed in Kuwait and engaged in the counter-ISIS campaign. Still, Congress has appropriated funds to fight ISIS in two annual cycles since then; DOJ argues that amounts to legislative ratification of Obama’s theory.
[Other stuff: Here is an amicus brief that Michael Glennon and the Constitution Project are seeking the court’s permission to file. It focuses on the War Powers Resolution’s “clear statement” rule. Here are previous NYT articles about the Obama administration’s legal theory that the White House needed no new grant of authority from Congress to go to war against ISIS because, they argued, the Islamic State was already covered by the 2001 AUMF against Al Qaeda (and by the 2002 AUMF against Saddam Hussein’s Iraq). And here is a NYT article about the filing of Captain Smith’s lawsuit, and about the government’s reply laying out its legal theory – enhanced by the notion that Congress, by appropriating funds for the conflict, has ratified it.]
Here’s the new brief: