Could One Soldier Derail ISIS War?

Law professor says troops have standing to challenge 'illegal' intervention in Iraq and Syria.

By Steven Nelson

President Barack Obama’s war against the Islamic State group in Syria and Iraq currently is illegal, many scholars say, and as the one-year mark for U.S. intervention approaches one constitutional law expert has an idea for how to prove it in court. 

Yale University law professor Bruce Ackerman, like other critics of the war's current legal grounding, says Obama is violating the War Powers Resolution by committing the U.S. military to hostilities without specific authorization from Congress.

It's historically been tough to establish standing to make such claims in court. But Ackerman has a plan.  

Active-duty members of the military, he says, would be directly impacted by allegedly illegal orders to deploy to the war zone and, therefore, could sue in federal court. In his judgment, they would likely win.

“I don’t know why this hasn’t been done,” Ackerman says. “There are many people we are talking about who could be such a person. … It’s a big army [and] we only need one.” 

The hypothetical lawsuit likely would be unprecedented, he says, and could result in a judge deciding the conflict is illegal, embarrassing both Obama and members of Congress who support the war but have not authorized it.  

[SCHOLARS: Obama War Power Claims 'Quite a Stretch,' 'Particularly Bizarre']

The proposal is being greeted with mixed reviews from other scholars, some of whom doubt it would work for the career-sacrificing soldier, whose case likely would rally antiwar activists and potentially spur legislative action.
 
The Constitution grants Congress the power to declare war, and the War Powers Resolution – enacted in response to secret expansion of the Vietnam War – limits use of force abroad to 60 days without congressional authorization, with an extra 30 days allowed for disengagement.

The war against the Islamic State group, also known as ISIS or ISIL, has gone 11 months without specific legislative authorization.

The White House claims the intervention is allowable under the 2001 authorization for use of military force (AUMF) that Congress passed to go after individuals, groups and nations that “planned, authorized, committed, or aided the terrorist attacks [of 9/11] or harbored such organizations or persons” and to a lesser degree the 2002 AUMF passed to topple Iraq's Saddam Hussein.

“The president has authority to continue these operations beyond 60 days consistent with the War Powers Resolution because the operations are authorized by statute,” a senior administration official said in September, when airstrikes expanded from Iraq into Syria. “The president does not need a new authorization in order to continue to take action," the official said, because of the Islamic State group's historical connection with al-Qaida.

Many legal scholars denounce reliance on the unrepealed war authorizations, particularly the 2001 AUMF against al-Qaida that's cited as the primary legal underpinning for open-ended bombing raids and the deployment of more than 3,000 troops to Iraq. The Islamic State group for more than a year has fought against al-Qaida’s Syrian affiliate, Jabhat al-Nusra, which on some fronts is allied with U.S.-backed rebels, and Osama bin Laden’s successor last year denounced the group.

[READ: Whoops? Obama Says He Needs Authority From Congress to Fight ISIS]

"Its license is limited to those connected with the 9/11 attacks," says Thomas Jefferson School of Law professor Marjorie Cohn, a former president of the National Lawyers Guild. "In fact," she adds, "when President Bush asked for authority 'to deter and pre-empt any future acts of terrorism or aggression against the United States,' Congress refused."

Matt Howard, co-director of Iraq Veterans Against the War, says the large advocacy group likely would be willing to support and defend from retaliation members of the military interested in filing a lawsuit.

Howard, a veteran of the Iraq War launched by the Bush administration, says he previously had not heard that active-duty troops can challenge the legality of the ISIS intervention and says he isn’t personally aware if it’s possible. He suspects that’s true of most – if not all – troops who meet Ackerman’s criteria for an ideal plaintiff.

Howard, who believes U.S. intervention in the Middle East helps breed extremism rather than extinguish it, adds “the military obviously doesn’t encourage dissent and even punishes it."

Not all legal scholars believe Ackerman’s idea would be successful, including at least one expert who agrees with him that Obama is breaking the law.

[ALSO: One Year Later: ISIS’ Caliphate Retains Vast Territory]

Eugene Fidell, co-founder of the National Institute of Military Justice, says “I wouldn’t take that case on a contingency basis!”

Fidell, who also teaches law at Yale, says judges are likely to consider such a lawsuit ill-suited for court and dismiss it.

“I cannot imagine such a claim being entertained,” he says. “The government would be in right away with a motion to dismiss and in my judgment the motion would be granted.”

“Basically,” Fidell says, “it would be a political question [and] there are certain kinds of government action that are considered to be textually committed to another branch of government that do not lend themselves to adjudication by nature.”

In a somewhat similar case, a federal judge dismissed a lawsuit in 2011 from 10 members of Congress who alleged Obama violated the War Powers Resolution with his unauthorized seven-month bombing campaign to help drive Libyan dictator Moammar Gaddafi from power.

[EARLIER: Rand Paul's Draft Declaration of War Dismays Anti-War Advocates]

Judge Reggie Walton, better known for his time leading the Foreign Intelligence Surveillance Court, rejected the lawmakers' claim to have standing on the basis of their official responsibilities or position as taxpayers.

Ackerman says an individual soldier, however, could meet the classic burden for standing by showing potential deployment would cause them a “concrete and particularized” injury that’s fairly traceable to the challenged action and redressable by a favorable ruling.

Soldiers cannot sue for damages related to their service, courts have found, but Cohn sees no reason they cannot seek "declaratory or injunctive relief based on the Nuremberg doctrine, which says there's a duty to disobey 'unlawful orders.'"

Fidell says there's nothing barring a soldier from filing such a lawsuit, but that a more appropriate response to a war effort without legal mooring is for Congress to defund the intervention “or if they’re really serious about it, impeachment.”

But Congress isn’t likely to do that. In addition to the American public, who recent polls show favor the military campaign against the religious extremists, a majority in Congress likely supports the mission even though they haven’t authorized it.

Last month, the House of Representatives soundly defeated a proposed resolution that would have ordered an end to the intervention without a new AUMF. It failed 288-139 after two hours of debate.

[MORE: ISIS Fights for Its Window to the Mediterranean]

"We're setting a bad precedent and by our inaction making it easier for future presidents to do whatever the hell they want to do and bypass Congress," says Rep. Jim McGovern, D-Mass., who authored the failed resolution. 

McGovern believes Obama is violating the War Powers Resolution but places most blame with the Republican leadership in Congress for not approving some variation of a draft authorization the White House submitted – along with a claim it's legally unnecessary – in February, six months after hostilities began.

"I don't know what it will take for Congress to act," McGovern says. "I'm not a constitutional lawyer, but if someone [sues] it clearly raises awareness and pressure on Congress."

McGovern visited Iraq last week and says he's unsure how exactly to address the conflict but believes Congress has a duty to debate the matter and pass an authorization or bring home deployed troops. 

"If you can't get 218 votes for anything, then we end it. That's how it's supposed to work," he adds. "If we're not willing to have the guts and debate this issue and vote on it, why the hell should we put our brave men and women in uniform in harm's way?"

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Louis Fisher, formerly the senior specialist in separation of powers for the Library of Congress, says he believes the anti-ISIS effort is unsupported by legal authority and violates the War Powers Resolution. But other presidents, he points out, have similarly ignored laws while ordering war.

President Harry Truman violated the U.N. Participation Act of 1945, which requires approval from Congress before joining a U.N.-authorized war, during the Korean War, says Fisher, now a Constitution Project scholar. Bill Clinton did, too, he says, with interventions in Haiti and the Balkans.

“To have Obama pursue an illegal war against ISIS and not be held accountable by Congress or the judiciary would not be that unusual,” Fisher says. 

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