President Barack Obama at the White House, August 4, 2015.

President Barack Obama at the White House, August 4, 2015. Official White House Photo by Pete Souza

How Obama Is Enabling the Next President to Launch Illegal Wars

If his administration gets its way, it would be even easier for future commanders in chief to take military action without approval from Congress.

President Obama has been emphatically warning Americans about the dangers of a Trump presidency. But these warnings divert attention from a much darker reality. His Justice Department is in fact pushing the law in a direction that will enable the next president to declare war against any “terrorist” group or nation without the consent of Congress.

This reality is clear from the Department’s response to a lawsuit challenging the legality of Obama’s war against the Islamic State.

In 1973, Congress passed the War Powers Resolution over President Richard Nixon’s veto. It represented the culmination of a national effort to prevent future presidents from repeating Nixon’s unilateral escalations in Vietnam. The Resolution provides that, when a president commits American forces to a new military engagement, he has 60 days to gain the explicit authorization of Congress for the war. If Congress refuses its consent, the Resolution requires the commander in chief to withdraw his forces from the battlefield within the next 30 days.

The Resolution represented a fundamental breakthrough. According to Senator Jacob Javits, its leading sponsor:

We live in an age of undeclared war, which has meant Presidential war. Prolonged engagement in an undeclared Presidential war has created a most dangerous imbalance in our Constitutional system of checks and balances. . . . [The bill] is rooted in the words and the spirit of the Constitution. It [aims] to restore the balance which has been upset by the historical enthronement of that power over which the framers of the Constitution regarded as the keystone of the whole Article of Congressional power–the exclusive authority of Congress to declare war; the power to change the nation from a state of peace to a state of war.

In making war against the Islamic State, Obama also launched an assault on the Resolution, attacking Congress's constitutional position as the ultimate arbiter over war and peace. When he began his new military campaign against ISIS in June 2014, he made no effort to gain Congress’s explicit approval  within the next 60 days. He asserted that the decade-old Congressional authorizations for President George W. Bush's wars against al-Qaeda and Saddam sufficed for his new war. In doing so, he took advantage of widespread confusion. ISIS did not even exist when Congress authorized Bush’s attacks in 2001 and 2002. And by the time that Obama began his new military adventure, ISIS had become al-Qaeda's bitter enemy.

This is precisely the kind of “undeclared presidential war” that the Resolution aimed to prevent. As Obama’s war moved into its third year, it has generated powerful dissent on Capitol Hill. Its break with the law has led constitutionalists to cross party lines, uniting leaders of the right, left, and center to condemn Obama’s failure to seek Congress’s approval. In the words of Tim Kaine, the senator and Democratic vice-presidential candidate, the war with the Islamic State has “shown to all that neither the Congress nor the president feels obliged to follow the 1973 War Powers Resolution which would cause the president to cease any unilateral military action within 90 days unless Congress votes to approve it.”

Read more: Al-Qaeda’s War on America Just Entered Its Third Decade
See also: This is the War Against al-Qaeda the Next US President Will Inherit

But representatives on Capitol Hill can’t go to court to ask the judges to insist that the president follow the law. Under the U.S. Constitution, courts can’t resolve abstract debates between politicians. They only are there to decide concrete “cases and controversies” generated when illegalities do concrete harm to real people.

Here is where Captain Nathan Smith enters into the story. A career officer in the Army, he was ordered to serve a year’s tour of duty in Kuwait at the command headquarters of Operation Inherent Resolve charged with coordinating Obama’s war against ISIS. As an intelligence officer, he was under orders to locate the best sites for military intervention in the ongoing struggle.

Smith believes they violate the express terms of the 1973 statute. Given his oath to “support and defend the Constitution,“  he also believes that he is under an obligation to disobey the illegal orders of his commander in chief when they violate the Resolution and the Constitution. If he follows his oath and disobeys orders, he faces the prospect of a court martial and serious punishment.

To escape this dilemma, Smith filed a lawsuit in federal court in the District of Columbia to get a clear answer on the status of the president’s orders. I am serving as a constitutional consultant in the on-going litigation; my 2015 Atlantic article about the war on ISIS and the War Powers Resolution led Smith to file his lawsuit. Last Thursday, we filed a brief emphasizing the dangers involved in the way the Justice Department has responded to Smith’s lawsuit.

The government is trying to persuade District Judge Caroline Kollar-Kotelly that she should refuse to consider the merits of Smith’s case. It asserts that the Captain lacks the personal stake required to challenge the legality of the war—and ignores the fact that he potentially faces a court-martial if he is obliged to act on his considered legal judgments.  Smith is not a conscientious objector. He is a deeply committed career officer who wants to serve his country in the war against ISIS—so long as it is consistent with his oath to “support and defend” the Constitution.

If the Justice Department succeeds in denying Smith a judicial hearing on the merits, this will make it impossible for anybody to appeal to courts to prevent future presidents from treating the War Powers Resolution with impunity. Nobody has a more personal stake in the legality of the war than service members like Smith.  If they are denied standing, this will forever preclude all court challenges to presidential war-making.

Our brief elaborates the legal arguments at length. For the larger public, it is more important to emphasize how this Department of Justice maneuver reveals the paradoxical character of Obama’s relationship to Donald Trump. Despite his isolationist tendencies on other issues, Trump has sent ISIS “a simple message … Their days are numbered. I won’t tell them where and I won’t tell them how. We must as, a nation, be more unpredictable. But they’re going to be gone. And soon.”  If the Department’s legal gambit succeeds, it will be impossible for anybody to challenge President Trump when he cites Obama’s precedent in taking his battle in “unpredictable” directions.

This is unacceptable. If Trump wins in November, the courts should have precedents to work with that can offer a robust set of defenses against unilateral military adventures. Worse yet, Hillary Clinton herself—in contrast to her running-mate—cannot be relied upon to maintain the integrity of the War Powers Resolution. While she won’t be as erratic as Trump, it is only the serious prospect of judicial intervention that will contain her hawkish inclinations.

Obama should tell the Department of Justice to reverse its position in Smith’s case. Rather than trying to deprive him of a hearing, it should try to convince the court that the war against the Islamic State can be defended on the legal merits.

Even if the Department succeeds on the merits, it will only lead the court to uphold the legality of the present war against the Islamic State. This won’t stop future courts from reining in future presidents when they engage in even more egregious abuses of the War Powers Resolution. In contrast, if the Justice Department continues to block Smith and his future counterparts from the courtroom, Obama is inaugurating an era of unbridled war-making by the commander in chief, without any of the checks and balances contemplated by the American constitutional system.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.