In the Press
Wednesday, May 31, 2023“Words and Policies: ‘De-Risking’ and China Policy — A Commentary by Paul Gewirtz Brookings
Wednesday, May 31, 2023It’s Time to Fix Congress’s Classification Infrastructure — A Commentary by Oona Hathaway ’97, Michael Sullivan ’24, and Aaron Sobel ’23 Just Security
Wednesday, May 31, 2023In ‘Fancy Bear Goes Phishing,’ Tales of Harmful Hacks The New York Times
Tuesday, May 30, 2023America Needs More Housing, But Not More Public Housing The Washington Post
Tuesday, July 12, 2016
Government Responds to Captain Smith Lawsuit
The United States government has responded to a lawsuit brought by a U.S Army Captain against President Barack Obama with a motion to dismiss. The brief was filed in U.S District for the District of Columbia on July 11, 2016.
The lawsuit, Smith v. Obama, was filed in May by Attorney David Remes on behalf of Captain Nathan Michael Smith. Smith is currently deployed to the Kuwait headquarters of the Combined Joint Task Force-Operation Inherent Resolve, which commands all forces in support of the war against ISIS in Iraq and Syria. Professor Bruce Ackerman is collaborating with Remes on the constitutional arguments in the case and wrote an op-ed outlining the legal arguments in May.
The lawsuit argues that the President and his administration are violating the Constitution by conducting military operations against ISIS in Iraq and Syria without obtaining Congressional authorization per the 1973 War Powers Resolution. In the lawsuit, Smith voices strong support for military action against ISIS, but cites his conscience and his oath to “preserve, protect and defend the Constitution of the United States.”
Captain Smith is requesting that the court declare whether the war against ISIS in Syria and Iraq violates the War Powers Resolution.
Read the government’s motion to dismiss here.
In response to the brief, Captain Smith’s legal team, including Attorney Remes and Professor Ackerman, released the following statement:
“The Government’s lengthy brief cites more than 80 judicial decisions, but fails to mention the Steel Seizure Case – where Justice Jackson explained that, even in matters of national security, presidential power is at “its lowest ebb” when the commander-in-chief violates express Congressional statutes. This view was recently reaffirmed by the Roberts Court in another case entirely ignored by the government (Zivotofsky v. Kerry), in which the Court insisted that the president “can rely [for his authority] only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”
The Justice Department’s surprising disregard of these decisions opens the path for its effort to trivialize the key provisions of the War Powers Resolution – which aimed precisely to prevent future presidents from repeating Richard Nixon’s example of ignoring Congress’ authority by unilaterally escalating the use of force in Southeast Asia.
The government’s brief also fails to cite the central case establishing Captain Smith’s standing to challenge the legality of the war against ISIS. Little v. Barreme, decided by the Marshall Court, is the source of a long standing obligation on military officers to disobey illegal commands – even at the risk of a lengthy prison term and dishonorable discharge. Once again, this great Marshall Court decision has been expressly reaffirmed in modern Supreme Court decisions which the government fails to cite, much less to analyze. (See Butz v. Economou, 438 U.S. 478, 489-90, citing Little as the foundational precedent for “the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015), with both majority and dissenting opinions affirming its foundational character.)
Our brief will bring to the Court’s attention these systematic failures to acknowledge the significance of decisive Supreme Court precedents, and urge it to follow the Court’s insistence on the rule of law and its requirement that the President gain the explicit consent of Congress, and the American people, to new wars.”