A former Army captain’s lawsuit challenging the war against the Islamic State group is legally dead due to the passage of time, a federal appeals court panel ruled Tuesday.
Three judges on the U.S. Court of Appeals for the D.C. Circuit heard arguments in October, but waited nearly nine months to rule, allowing time for military operations in Syria and Iraq to wind down and for the litigant, former Army Capt. Nathan Michael Smith, to leave the military.
Smith, formerly deployed as an intelligence analyst in Kuwait, left active-duty military service last year, but remained on “ready reserve” status until June.
Smith filed the lawsuit in 2016, arguing that he had a right to sue because he was directly impacted by the allegedly illegal war.
Smith said he supported the fight against the jihadi group, but that his conscience bothered him because he was forced to violate his oath to uphold the Constitution by participating in a war effort that was not authorized by Congress.
“Because Smith has finished his military service, his oath-related controversy is no longer ongoing,” the appeals judges ruled in a three-page judgment. They found the alleged injury was not “capable of repetition, yet evading review,” which could allow the case to continue.
It’s not yet clear if there will be an appeal. “We are reviewing our options,” said attorney David Remes, who represented Smith alongside Yale Law School professor Bruce Ackerman.
Smith, who plans to enter business school this year, told the Washington Examiner that “the judiciary’s refusal to take seriously or consider on the merits a servicemember’s valid questions about the legality of today’s increasingly expansive, unilateral executive military actions should trouble all Americans.”
“To me it demonstrates that congressional control of war powers is becoming a historical anachronism rather than an existing and relevant check,” he said.
Smith said that he hopes senators will ask Supreme Court nominee Brett Kavanaugh, a D.C. Circuit judge uninvolved with the case, for his views on war powers.
The Obama and Trump administrations argued the war against the Islamic State, also known as ISIS, is allowed under 2001 legislation authorizing military force against al Qaeda, though skeptics note a rivalry since 2014 between the groups. Overlapping authority in Iraq is claimed from an authorization passed in 2002 against then-leader Saddam Hussein.
Some scholars dispute claims that dated authorizations grant broad war-making power. But U.S. District Judge Colleen Kollar-Kotelly ruled against Smith in November 2016, finding that he lacked standing, that his claims dealt with a matter traditionally handled by the political branches of government, and that Congress had implied approval by providing funding.
At an October hearing before the U.S. Court of Appeals for the D.C. Circuit, a Trump administration attorney argued that wars are off-limits to court review, even if they plainly are not authorized by Congress.
Although ISIS currently holds only small pockets of territory — after formerly controlling nearly a third of both Iraq and Syria — about 2,000 U.S. troops remain embedded with Kurdish militia in Syria, with additional U.S. troops in Iraq. The question of war powers in the region remains hotly contested, including after President Trump bombed Syria’s government in April after an alleged use of chemical weapons.
Smith originally sued then-President Barack Obama, but the case became known as Smith v. Trump, reflecting the change in administrations.
“For me, it’s not a partisan issue,” Smith said outside of the appeals court hearing last year. “Procedure matters, if we’re a nation of laws.”
“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,” Ackerman told the appeals panel in October.
