Army captain sues Obama over lack of ISIS war authorization

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Bush-era war authorizations do not give President Obama authority to fight the Islamic State in Iraq and Syria (ISIS), an Army officer argued in a lawsuit filed Wednesday against Obama.

The lawsuit was filed in U.S. district court by an intelligence officer stationed in Kuwait who says he supports the fight against ISIS but believes it is being carried out illegally because Congress hasn’t specifically authorized it.

{mosads}“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?” Capt. Nathan Michael 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.”

Obama has sought an authorization for use of military force (AUMF) from Congress. But Congress has been hesitant to take it up, with Republicans worried it would be too restrictive and some Democrats worried it wouldn’t be restrictive enough.

In the absence of a new AUMF, Obama has said he has the authority to fight ISIS from the 2001 authorization to fight al Qaeda, from which ISIS originated.

The administration has also cited 2002 authorization for the Iraq War.

The issue arose anew in the past few weeks after Obama and the Pentagon announced the deployment of another 217 troops to Iraq and 250 to Syria.

The lawsuit also comes a day after the third combat death of U.S. service member in the fight against ISIS, which stoked the authorization issue.

“Praying for the family of the Navy SEAL tragically killed in Iraq. Our troops are in harms [sic] way yet Congress lacks courage to debate this war,” Rep. Barbara Lee (D-Calif.) tweeted Tuesday. Lee was Congress’s only dissenter against the 2001 AUMF and has long called for Congress to debate a new use-of-force measure.

The lawsuit hinges on the War Powers Resolution, a Vietnam War-era law that says the president must get a war declaration or authorization from Congress within 60 days of deploying troops or else withdraw within another 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,” the suit says. “The war is therefore illegal.”

The suit also says the 2001 measure does not apply because it authorized war against those who carried out the Sept. 11 attacks, which ISIS did not.

The 2002 authorization does not apply, the suit adds, because the war that it authorized has been declared over and because it does not cover Syria.

“In waging war against ISIS,” the lawsuit says, “President Obama is misusing limited congressional authorizations for the use of military force as a blank check to conduct a war against enemies of his own choosing, without geographical or temporal boundaries.”

A senior administration official said in a statement, “We’ll decline to comment on matters before the court.”

However, the official defended the White House’s efforts to get an AUMF passed, and keep Congress informed about the war, including sending officials to testify before Congress, answering questions from members of both parties, and the president supoprting a new AUMF in his 2015 and 2016 State of the Union addresses. 

“Yet more than a year later, Congress has utterly failed to fulfill its responsibility. One thing is abundantly clear: our men and women in uniform and our coalition partners are on the frontlines of our war against ISIL, while Congress has remained on the sidelines,” the official said. 

— This story was updated at 11:09 p.m. 

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