A Soldier's Dilemma
In 2016, Captain Nathan Smith sued President Obama for issuing an order to engage in the battle against ISIS without congressional approval. Can his case clarify the debate over President Trump’s strikes in Syria?
In 2010, I entered the Army as an officer, solemnly swearing to “support and defend the Constitution of the United States.” It was the proudest moment of my life, continuing a family tradition of service stretching back three generations to World War II. I remember the awesome weight of my oath as I pledged to serve during a time of war. That oath later led me to make the most difficult decision of my life. In May of 2016, I sued President Obama for issuing an illegal order for me to engage in the battle against the Islamic State. I believe his order violates the Constitution and the 1973 War Powers Resolution, which forbids on-going warfare without the specific consent of Congress.
I made this decision while assigned as an intelligence officer to the command headquarters of Operation Inherent Resolve in Kuwait, and only after months of internal turmoil. Over and over, I weighed the obligation to my oath against my desire to continue serving with my unit against a reprehensible enemy. In 2015, the law professor Bruce Ackerman explained in The Atlantic why he believed an individual soldier would have standing to challenge the president’s decision. Holding the deep concerns I did on the mission’s legality, I read that article, and after much further contemplation, decided I was compelled to act by my loyalty to the Constitution. I remember blankly staring at the computer screen before hitting the button to send the email with my signed legal paperwork. This simple act meant that I would be unable to continue my family’s tradition of career military service, and that I might not be allowed to finish the last four months of a year-long deployment with my soldiers. I believe I did not have a choice.
The Constitution is clear; only Congress can declare war. This decision was central to the Founders’ plan. As James Madison explained, "the constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature."
Related: Trump’s Unlawful Attack in Syria
People have asked me many times what truly motivated my decision to launch the lawsuit. “Did you hate Obama?” It’s as if whatever I say in those subsequent seconds will drive their response to my actions one way or the other as they seek to determine if I am partisan friend or foe.
The truth is that I am a largely non-partisan soldier confronting a fundamental dilemma. On the one hand, I believed that the war was illegal because Obama failed to gain the congressional consent required. On the other hand, I was a soldier, and it was possible that there were legal arguments that had escaped my attention which might justify the president’s actions.
When faced with this dilemma, I turned to the only available option that allowed me to continue to serve with honor. I asked the federal judiciary to determine whether Obama’s failure to gain congressional consent was indeed a violation of the War Powers Act and the Constitution. While this question was pending in the courts, I would continue to serve in Operation Inherent Resolve just as I had before.
However, if the judges refused to hear my case and provide an independent judgment, I would then be faced with only two stark choices. In one, I could follow my own judgment that told me the order was unconstitutional and must be disobeyed, and thereby likely subject myself to a court-martial. In the other, I could betray my oath to the Constitution by continuing to engage in an unconstitutional war.
With the lawsuit pending before the federal courts, I followed every order given to me during the final months of my year-long deployment. I eventually returned home with my unit as the slow process of judicial review began. While my legal action may have given my personal dilemma public prominence, I was unique only for the action I chose to take, and not for being deeply troubled by the legally questionable nature of the mission.
After returning home, I faced another difficult choice. My first seven years of service as an officer were coming to an end, and I decided that I could not continue on active duty and run the risk of serving again in an unconstitutional war. Nevertheless, I remain a member of the individual ready reserve for at least a year, subject to recall for service in one or another constitutionally questionable missions.
Despite this continuing vulnerability, the district-court judge who heard my case refused to resolve my dilemma, ruling instead that I lacked standing to raise my constitutional challenge—which she held raised “political questions” that should not be resolved by the judiciary. That ruling has been appealed. I’m asking the Court of Appeals for the District of Columbia to recognize the seriousness of the dilemma I confront, along with all the other servicemen and women serving their country.
In granting standing and hearing the merits, the appellate court would not only allow us to continue serving in support of the mission with honor while it resolves the constitutional issues in a thoughtful fashion. It would also clarify the fundamental issues at a time when the American people are engaged in a renewed debate over presidential war-making provoked by President Trump’s Tomahawk strikes in Syria.
I also believe that by taking these core issues seriously, the Court of Appeals would encourage the president and Congress to examine their obligations to the Constitution, precisely as the Founders envisioned. They might also help ordinary Americans confront their own responsibilities to preserve the Founders’ vision of the republic.