A Trump administration attorney said Friday that federal courts cannot evaluate whether a president is waging an illegal war, even if the war clearly has no grounding in a congressional authorization of force and someone directly impacted sues.
The claim was made during oral arguments in an appeal filed by Nathan Michael Smith, a now-former Army intelligence analyst who sued last year claiming former President Barack Obama was illegally fighting Islamic State terrorists without an authorization for use of military force, or AUMF, from Congress.
Smith, who left active-duty military service in June, supports fighting the jihadi group, but argues doing so has not been properly authorized by Congress. “For me, it’s not a partisan issue,” he told the Washington Examiner outside a courtroom in the nation's capital. "Procedure matters, if we're a nation of laws.”
Judges considered various arguments that Smith’s case should be thrown out, including that he has no standing to sue — a matter focused on whether a coerced choice between violating his oath of office or risking court martial is sufficient.
Another government argument claims the war's legality is a political question unsuitable for courts to review, and therefore the case must be dismissed.
Smith argues he has cleared the hurdles required to sue and that on the merits he's correct in claiming the administration is improperly relying on war authorizations from 2001 against Al Qaeda and 2002 against Saddam Hussein to justify current operations in Iraq and Syria.
Judge Thomas Griffith, one of three members on the panel of the U.S. Court of Appeals for the D.C. Circuit, expressed concern about accepting the government’s argument that courts cannot rule on the matter.
“What if the president were to initiate hostilities with a nation or organization that wasn’t plausibly within these AUMFs, would that be subject to review?” Griffith asked.
“No, I think, is the short answer. No,” said Thomas Byron, an experienced Justice Department attorney.
Griffith, exploring potential consequences, asked: “Under what circumstances would the judiciary be entitled to limit the president’s exercise of his war powers? Help me understand that. It sounds to me like you’re saying none.”
“I think what I’m saying is we haven’t seen it yet,” Byron said.
The judge, pressing further, asked whether AUMFs actually placed any constraints on the president.
“Is there any example where the president initiates hostilities that are beyond the scope of the AUMF and a plaintiff with standing comes here to challenge it, do we have authority to enforce the AUMF against the president?” the judge asked.
“I think probably not, and there are many reasons as we discussed today,” Byron said.
Later, the government attorney said, “It can be enforced but not in court," arguing the proper remedy for illegal wars is congressional action.
Another judge on the panel, Raymond Randolph, recalled an 8-1 U.S. Supreme Court ruling in 1973 that struck down an injunction against President Richard Nixon's bombing of Cambodia during the Vietnam War. He noted that Congress stepped in, forcing an end to the bombing.
The secret bombing of Cambodia prompted Congress to pass the 1973 War Powers Resolution, which requires presidents to gain congressional authorization within 60 days of initiating hostilities — the requirement Smith says Obama and now Trump violated.
Attorneys for Smith said it would be troubling if judges found that presidential war-making is off limits.
Yale Law Professor Bruce Ackerman — who theorized in 2015 that an active-duty soldier could overcome standing questions, prompting Smith to contact him — warned the stakes are high.
“If the court fails to act in this case, it will have established a precedent that permits future presidents of the United States with a mere assertion [to declare] that one or another terrorist group, without any provision of evidence to anybody, is an object of war. Forever,” he said in closing remarks.
Attorney David Remes, who also is representing Smith, said he was concerned specifically about Trump.
“If the court goes the other way, we have a president who is completely unpredictable, who can’t be assumed to exercise his power in a responsible way,” Remes told the Washington Examiner. “The idea that President Trump has unlimited war-making powers is absolutely frightening.”