Administration Rebuts Soldier’s Suit That Calls ISIS Fight Illegal

http://www.nytimes.com/2016/07/13/us/isis-war-powers-obama-lawsuit.html

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WASHINGTON — The Obama administration, arguing that Congress’s funding of the fight against the Islamic State amounts to a ratification of President Obama’s power to wage that war, has urged a federal judge to dismiss a lawsuit that says the military action is illegal.

In a 45-page legal brief filed in Federal District Court for the District of Columbia, the administration offered its most extensive public explanation yet of its war powers theory.

While Mr. Obama has not received new and explicit authorization from lawmakers for the war against the Islamic State in Iraq and Syria, the brief said that “the president has determined that he has the authority to take military action” against the group, and that “Congress has ratified that determination by appropriating billions of dollars in support of the military operation.”

The brief asked the court to dismiss a lawsuit against Mr. Obama filed in May by Capt. Nathan Michael Smith, an Army intelligence officer deployed to Kuwait for the war. Citing his oath to uphold the Constitution, Captain Smith said he believed that the operation violated the War Powers Resolution, which limits to 60 days combat operations that lack congressional authorization.

In addition to its argument on congressional funding, the administration offered several reasons that the case should be dismissed without scrutiny of its legal merits: that courts should leave war powers questions to the two politically elected branches of government; that sovereign immunity bars the lawsuit; and that Captain Smith lacked legal standing.

Two lawyers representing Captain Smith, Bruce Ackerman and David Remes, criticized that reasoning. Mr. Ackerman said the brief made no mention of several key Supreme Court precedents that he said ran counter to the government’s position, and Mr. Remes rejected the government’s argument that judges should stay out of war powers disputes.

“The government is arguing that it is not appropriate for the court to decide whether the president has violated the law,” he said. “We disagree. Captain Smith simply wants to know if what he is doing is legal. He has a right to have the court decide that question.”

The dispute traces back to the summer of 2014, when Mr. Obama ordered the military to bomb Islamic State forces in Iraq and Syria. While he asked Congress to endorse that effort, he also said it was unnecessary because the operation was covered by the 2001 authorization for the use of military force against the perpetrators of the Sept. 11 terrorist attacks and by the 2002 authorization for the Iraq war.

Critics said that Mr. Obama was stretching his power under those old statutes too far and that this was a new and different conflict. While the Islamic State was once Al Qaeda’s Iraq affiliate, the two groups were now at war. But the administration argued that it had the authority to keep fighting successor factions.

Congress has not enacted an Islamic State war authorization since then, but the brief said the earmarking of money for the operation conveyed “Congress’s support for the president’s actions, including his determination that he had and continues to have authority to act under prior congressional authorizations for the use of military force.”

Senator Tim Kaine, a Virginia Democrat who has rejected the administration’s theory and criticized Congress for not passing a new authorization — and who is considered a potential running mate for Hillary Clinton — said in a statement: “A decision to fund defense operations is vastly different than a war authorization. Our troops risking their lives deserve to know whether Congress stands with them.”