Sup­porter of war against Is­lamic State files suit to have it le­gal­ized

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Army Capt. Nathan Michael Smith be­lieves the U.S. fight against the Is­lamic State is a “good war” against “an army of butch­ers” — which makes it all the more sur­pris­ing that he has filed a law­suit that, if suc­cess­ful, could end up scut­tling the war.

The in­tel­li­gence of­fi­cer says that while the fight is just, it’s also il­le­gal be­cause Pres­i­dent Obama launched it with­out the ex­plicit ap­proval of Congress.

He has asked the fed­eral courts to step in and halt the fight, say­ing that un­til Congress gives an of­fi­cial OK, he and his troops are in the im­pos­si­ble sit­u­a­tion of tak­ing up arms for an il­le­gal war, vi­o­lat­ing the oaths they took when they joined up.

A fed­eral dis­trict court in Washington re­jected the case last year, rul­ing that Capt. Smith didn’t have stand­ing to sue and that dis­putes over war pow­ers are best left to Congress and the pres­i­dent to fight

out in the po­lit­i­cal arena.

Capt. Smith asked an ap­peals court this month to take the case and set­tle the is­sue once and for all.

“There is a good deal of good faith ques­tion­ing amongst many se­ri­ous of­fi­cers about the prob­lem­atic le­gal­ity of the war,” said Bruce Ack­er­man, a law pro­fes­sor at Yale who has spo­ken with Mr. Smith nu­mer­ous times.

“He is rep­re­sen­ta­tive of a much larger group of peo­ple who on the one hand, as most Amer­i­cans, be­lieve the war against the Is­lamic State is a se­ri­ous and valu­able com­po­nent in our for­eign pol­icy, and on the other hand, are com­mit­ted to the Con­sti­tu­tion,” the pro­fes­sor said.

Capt. Smith makes for an un­usual plain­tiff. Un­like Viet­nam War-era hold­outs, he is not a con­sci­en­tious ob­jec­tor. He joined the mil­i­tary in 2010 and first served in Afghanistan, then was de­ployed to Kuwait as part of the in­tel­li­gence team sup­port­ing the coali­tion try­ing to oust the Is­lamic State from Iraq.

But even as he and his comrades were cheer­ing vic­to­ries over the armed in­sur­gents, he told the court, he be­gan to won­der, “‘Is this the ad­min­is­tra­tion’s war or is it Amer­ica’s war?’ The Con­sti­tu­tion tells us that Congress is sup­posed to an­swer that question, but Congress is AWOL.

“My con­science both­ered me. When I was com­mis­sioned by the pres­i­dent in May 2010, I took an oath to ‘pre­serve, pro­tect and de­fend’ the Con­sti­tu­tion of the United States,” said Mr. Smith.

U.S. Dis­trict Judge Colleen Kol­lar-Kotelly, who ruled against Capt. Smith last year, said he never showed he suf­fered a par­tic­u­lar in­jury to him­self so he didn’t have stand­ing to sue.

“Plain­tiff of­fers no real sup­port for the ex­tremely ex­pan­sive and ap­par­ently novel in­ter­pre­ta­tion of the of­fi­cer’s oath that would re­quire dis­obe­di­ence of mil­i­tary or­ders based on an of­fi­cer’s le­gal in­ter­pre­ta­tion of whether Congress had prop­erly au­tho­rized the broader mil­i­tary ef­fort,” the judge ruled.

Capt. Smith, who re­mains on ac­tive duty through June, was trav­el­ing and un­able to be reached, his at­tor­ney, David Remes, told The Washington Times.

But Mr. Remes said his client re­mains trapped.

“The Dis­trict Court did not re­al­ize or ap­pre­ci­ate the fact that he is re­ally on the horns of a dilemma — ei­ther he obeys his or­ders or he honors his oath of of­fice be­cause his oath of of­fice says up­hold the Con­sti­tu­tion,” the lawyer said.

Mr. Smith said he in­tends to con­tinue to obey or­ders in sup­port of Op­er­a­tion In­her­ent Re­solve un­til his case is re­solved.

“I can only say that af­ter Capt. Smith filed his suit, other sol­diers who sup­port Op­er­a­tion In­her­ent Re­solve sort of came up to him qui­etly and ex­pressed sup­port, but it takes a lot of courage to do this,” said Mr. Remes.

If Capt. Smith is ruled to have stand­ing, then a crit­i­cal question would be whether the Is­lamic State or­ga­ni­za­tion is rightly con­sid­ered an off­shoot of al Qaeda.

A 2001 vote by Congress did au­tho­rize mil­i­tary ac­tion against the per­pe­tra­tors of the Sept. 11, 2001, ter­ror­ist at­tacks, and against any al­lied forces such as the Tal­iban that pro­vided safe haven in Afghanistan for al Qaeda.

The Obama ad­min­is­tra­tion ar­gued that the Is­lamic State used to be known as al Qaeda in Iraq, or AQI, be­fore it had a fallingout with core al Qaeda — but those roots made it a vi­able tar­get un­der the 2001 Au­tho­riza­tion for the Use of Mil­i­tary Force, or AUMF.

Capt. Smith, though, has filed briefs by a group of Is­lamic schol­ars who say the con­nec­tion is ten­u­ous at best.

Michael Glen­non, a law pro­fes­sor at Tufts Univer­sity who signed onto le­gal briefs back­ing Capt. Smith, said it was un­usual for a plain­tiff like Mr. Smith to chal­lenge war pow­ers de­spite sup­port­ing the war.

“Most war pow­ers chal­lenges in the past have been raised by draft re­sisters or ser­vice­men who oth­er­wise dis­agreed with the un­der­ly­ing pol­icy, so it’s in fact some­what un­usual that the in­di­vid­ual in question is sup­port­ive of the pol­icy,” said Mr. Glen­non. “How­ever, it’s easy to un­der­stand the dilemma that he’s in be­cause he’s been given con­flict­ing or­ders and he faces po­ten­tial pun­ish­ment ei­ther way.”

Mr. Glen­non also said pub­lic polling in­di­cates that Amer­i­cans think the pres­i­dent shouldn’t wage war with­out ap­proval from Congress.

“If the press re­ports it more fully, I think the pub­lic would be quite out­raged,” he said.

Mr. Remes thinks the ap­pel­late court will sched­ule oral ar­gu­ments in the fall, with the de­ci­sion pos­si­bly com­ing down later this year.

If Mr. Smith’s case is suc­cess­ful, then Pres­i­dent Trump would need con­gres­sional ap­proval to con­tinue the war against the Is­lamic State or have 30 days to stop the mil­i­tary op­er­a­tion.

But Stephen Vladeck, a law pro­fes­sor at the Univer­sity of Texas, pre­dicted that the ap­peals court would up­hold the dis­trict court’s rul­ing.

“I think there’s a lot of merit to Capt. Smith’s claim — and a very dif­fi­cult question of statu­tory in­ter­pre­ta­tion con­cern­ing whether the 2001 use of force au­tho­riza­tion can fairly be read to en­com­pass the Is­lamic State,” Mr. Vladeck said.

“But,” he added, “courts have his­tor­i­cally been quite re­luc­tant to re­solve such fraught ques­tions about the sep­a­ra­tion of war pow­ers — and have looked for any plau­si­ble way to rule in the case with­out reach­ing the mer­its.”

Army Capt. Nathan Michael Smith says he feels con­flicted and thhe is break­ing his oath to pre­serve, pro­tect and de­fend’ the Con­sti­tu­tion of the United States.”

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