Captain Nathan Smith believes President Obama has overstepped his constitutional authority in the war against ISIS
Earlier this month, Nathan Michael Smith, an active-duty U.S. Army Captain, filed suit against President Barack Obama in the U.S. District Court for the District of Columbia, claiming that the fight against the Islamic State, also known as ISIS, is illegal. Captain Smith believes America’s current operations were never properly authorized and thus violate the Constitution. By turning to the courts, he seeks to force the administration to either fulfill its obligations and obtain a new Authorization for the Use of Military Force (AUMF), or end the fighting.
Captain Smith is currently serving as an intelligence officer in the Kuwait headquarters of Operation Inherent Resolve, the codename for U.S. operations against the terror group. Although Smith firmly believes he is fighting a “good war,” he worries that it is in violation of his oath to “preserve, protect, and defend the Constitution of the United States,” which gives the power to declare war solely to Congress.
The president, as commander-in-chief of the Armed Forces, does have the power to introduce U.S. forces into conflict short of war, as laid out in the 1973 War Powers Resolution. However, under that same resolution, the president is also required to obtain a formal Authorization for the Use of Military Force (AUMF) from Congress if the operation lasts beyond sixty days. As stated in Captain Smith’s legal complaint, “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. The war is therefore illegal.”
The Obama administration has maintained that it does not need a new AUMF from Congress to fight ISIS, relying instead on the authorization passed in the wake of the 9/11 attacks, and additionally on the 2002 AUMF passed in the lead-up to the 2003 invasion of Iraq. However, Captain Smith and his legal adviser, Yale law professor Bruce Ackerman, argue that, “this claim directly contradicts Congress’ original understanding in enacting the 2001 [and 2002] Authorization.”
Those laws authorized military action in specific circumstances, and according to Captain Smith, the 2001 and 2002 AUMFs do not apply to the current operations against ISIS. In particular, the 2001 law sanctions military action against “those nations, organizations or persons… [that] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.”
This language is clearly focused on Al-Qaeda and the Taliban, and as Ackerman and Smith observe, “ISIS is in no way responsible for the September 11 attacks.”
Captain Smith ultimately hopes the court will “declare that the war against ISIS in Syria and Iraq violates the War Powers Resolution,” and that the Obama administration will take constitutional limitations on executive power more seriously.
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