By Bruce Ackerman
May 4, 2016
IN May 2010, Nathan Michael Smith joined the Army, swearing an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” He took up this mission on the battlefield in Afghanistan, and is now serving as a captain in Kuwait at the command headquarters of Operation Inherent Resolve, the campaign against the Islamic State that President Obama initiated in 2014.
The president claims that Congress’s authorizations in 2001 and 2002 for the wars against Al Qaeda and Saddam Hussein can be stretched to cover his current campaign. But many legal experts question his unilateral assertion of power. Captain Smith became increasingly troubled as he saw the president failing to persuade the House and Senate to stand up and be counted. Does the captain’s participation in this undeclared war involve him in a mission to destroy, not “defend,” the Constitution?
Captain Smith, 28, has now brought suit in federal court to request an independent judgment on whether he is betraying his oath.
He did not make this decision lightly. He comes from a long line of military officers. His father, mother and sister have all served with distinction; his grandfather flew 30 missions as a fighter pilot during World War II. Captain Smith continues to believe that the American military is a force for good in the world — but, he began to believe, not if it engages in wars that have failed to win the approval of Congress and the American people.
Enter the Internet. In August I published an essay in The Atlantic explaining that soldiers during the Vietnam War faced a similar predicament — and that two federal courts of appeal had considered their challenges to the war’s legality on the merits. The war ended before the issue could be decisively resolved by the Supreme Court, but I argued that these decisions would serve as precedents for a comparable lawsuit today.
Months passed before my article flitted across Captain Smith’s screen, but in the meantime he was reflecting on a different legal precedent from a distant era. In 1802, the Supreme Court, led by Chief Justice John Marshall, first confronted the question of whether a military officer had a duty to disobey illegal orders from his commander in chief. The court’s answer: “A commander of a ship of war of the United States, in obeying his instructions from the president of the United States, acts at his peril. If those instructions are not strictly warranted by law he is answerable in damages to any person injured by their execution.”
As Captain Smith reflected on that decision, he first thought that only one path was open to him: As an officer devoted to the Constitution, he had an overriding obligation to disobey orders issued as part of the Inherent Resolve operation — despite the threat of immediate detention and serious punishment if his view of the law was ultimately rejected by military tribunals and civilian courts.
My essay suggested that modern law provided him with a better way of dealing with his problem. After all, Captain Smith is not a trained jurist. Perhaps his view was mistaken, and President Obama was indeed acting within his powers as commander in chief. If this turned out to be the case, his heroic defense of the Constitution would have been utterly counterproductive, leading only to punishment and the humiliating destruction of his military career.
This is precisely why he has now filed an action in the United States District Court for the District of Columbia requesting the court issue a declaratory judgment on his constitutional responsibilities — pledging to continue his dedicated service while the judges resolve the decisive legal issues raised by the undeclared war (he is represented by David H. Remes; I am acting as a consultant).
The Vietnam War-era precedents should encourage today’s judges to take Captain Smith’s case seriously — especially since the argument on the merits is much stronger this time around. During the last months of the Nixon administration, a bipartisan congressional majority passed the War Powers Resolution over the president’s veto. Its aim was to prevent future presidents from following Nixon’s example in escalating the Vietnam War far beyond the limited authorization provided by the Gulf of Tonkin Resolution.
The 1973 resolution requires the commander in chief to gain the approval of the House and Senate within 60 days of introducing forces into situations involving “imminent hostilities.” If he fails to gain congressional authorization, he must terminate his campaign within the next 30 days.
To his great credit, President Obama has repudiated the extreme claims made by former Vice President Dick Cheney and John Yoo, a deputy assistant attorney general under President George W. Bush, who have denounced the War Powers Resolution as unconstitutional. He has instead expressly recommitted his administration to the more sober views elaborated by Jimmy Carter’s Office of Legal Counsel, which found that the 60/30 day time clock was fully consistent with the president’s “constitutional function as commander in chief.”
This is not the place to counter the legal arguments that the president’s lawyers will make on his behalf. My aim is simply to insist that Captain Smith is right to believe that the federal courts provide the proper forum for relieving him, and other conscientious soldiers, of the terrible dilemma posed by their oaths of office.
Ordinary Americans don’t face the same tragic choice. But they will greatly benefit from the judicial effort to provide Captain Smith with an answer. At the very least, the prospect of judicial review will encourage the leading presidential candidates to make their own positions clear on the fundamental issues involved. If they intend to return to the presidentialist excesses of the Bush era, this is the time to let the voters know. But if they stand firm on the constitutionality of the War Powers Resolution, this will prepare the way for a renewed effort to comply with its demands after the elections.
There is no knowing, of course, who will be taking charge in Washington after Election Day. Just as President Obama and Congress failed to hammer out a new authorization for the war against the Islamic State, their successors may also fail to live up to their solemn responsibilities under the War Powers Resolution. Nevertheless, political pressure to break the logjam will increase as Captain Smith’s case moves up the judicial ladder.
If the impasse continues, however, it will raise a stark question when the case finally reaches the Supreme Court. Given the failure of the political branches to do their job, are the justices prepared to defend their role as the ultimate guardian of our Constitution?