Heroic action in war vs. ISIS

You have probably never heard of Capt. Nathan Michael Smith, an Army intelligence officer stationed in Kuwait. He has not saved any lives or survived enemy fire. He is not a war hero per se.

Yet, Captain Smith has done something heroic – on May 4 he sued President Obama over the commitment of troops against ISIS (or ISIL as the Government labels it) in Syria and Iraq. His motivation does not stem from opposition to a war against ISIS. Far from it.

In Paragraph 4 of his accompanying affidavit, he describes himself as, “Like everyone else, I was taken aback when I saw ISIS sweep through Syria and Iraq, seizing city after city, town after town, with their beheadings and crucifixions, laying to waste all in their way. They are an army of butchers. Their savagery is sickening.”

In the next paragraph, he observes, “When President Obama ordered airstrikes in Iraq in August 2014, and in Syria in September 2014, I was ready for action. In my opinion, the operation is justified both militarily and morally. This is what I signed up to be part of when I joined the military.”

Instead, as he explains, as an Officer serving our country, he does not understand how the military can be legally deployed in Iraq and Syria. He muses, “‘Is this the Administration’s war, or is it America’s war?’

The Constitution tells us that Congress is supposed to answer that question, but Congress is AWOL.”

Capt. Smith’s concern is with our Constitution, and he is exactly correct. War-making responsibilities are divided by the Constitution into neat boxes – Congress declares war, the President executes it. The President’s authority as “Commander-in-Chief” does offer a bit of a “fudge factor,” permitting some latitude to unilaterally order the military to protect our interests. This is how President Reagan justified our invasion of Grenada. It could hardly permit a President to send troops into the Iraq/Syria quagmire.

Throughout the Vietnam War, Congress battled the Presidency for control of our foreign policy. When Congress learned President Johnson had gotten us almost secretly entangled in the Vietnamese civil war, it passed something called the “War Powers Resolution” in 1973. This tells a President its O.K. to use military force, but if it lasts more than 60 days, you have to check with Congress to continue.

No President likes having policy tied up in Congressional vote-wrangling. Still, a rogue-President would create a constitutional crisis. Thus, even following the Sept. 11 airplane attacks of Al Qaeda, then-President Bush sought two military authorizations from Congress – one (2001) authorizing war on Al Qaeda and the Taliban (and we invaded Afghanistan), and the second (2002) authorizing war in Iraq.

President Obama has relied on these authorizations to commit troops against ISIS, even though neither provides a direct link to ISIS. Yes, the 2001 authorization, 15 years later, has us still flaying around in Afghanistan to tamp down the Taliban and bring order to a shattered country. Yet, Capt. Smith’s complaint argues that it cannot be interpreted as authorizing the extra-national deployment of troops in Iraq and Syria, against ISIS, a non-Taliban, non-Al Qaeda foe. The 2002 authorization is an even more feeble excuse to attack ISIS, since, according to the Complaint, President Obama declared Iraq activities over in 2014.

This leaves Capt. Smith legitimately torn over whether or not his participation in efforts to defeat ISIS is legal. By following the President’s orders, he might be guilty of illegal acts of aggression and violating his oath to uphold our Constitution.

This lawsuit is unlikely to crawl very far. Courts are reluctant to let private citizens sue the Government without a cognizable injury. Capt. Smith’s “conscience” or concerns about committing a “war crime” are likely too flimsy for any judge or justice to wade into the political minefield of an active war theater.

This means we have something approaching a constitutional crisis. Our current, craven, Congress does not have the stomach for ISIS. It neither wants responsibility for authorizing use of force, nor does it wish to order us to abandon the Iraq/Syria theater to these marauders. President Obama is either a rogue-President or acting in our interests. If he is the former, do your job and pass a resolution prohibiting the use of force against ISIS; otherwise, tell our brave soldiers, they are fighting an American war, authorized by Congress.

Capt. Smith is a hero, he has given voice to legitimate concerns about quicksand soldiers find themselves in while fighting ISIS for us in Syria/Iraq. He shows far more courage than our elected officials.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor. Visit www.rockefellerlawcenter.com to submit confidential legal questions, and to review former articles and Frequently Asked Questions.

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