- The Washington Times - Sunday, April 23, 2017

Army Capt. Nathan Michael Smith believes the U.S. fight against the Islamic State is a “good war” against “an army of butchers” — which makes it all the more surprising that he has filed a lawsuit that, if successful, could end up scuttling the war.

The intelligence officer says that while the fight is just, it’s also illegal because President Obama launched it without the explicit approval of Congress.

He has asked the federal courts to step in and halt the fight, saying that until Congress gives an official OK, he and his troops are in the impossible situation of taking up arms for an illegal war, violating the oaths they took when they joined up.

A federal district court in Washington rejected the case last year, ruling that Capt. Smith didn’t have standing to sue and that disputes over war powers are best left to Congress and the president to fight out in the political arena.

Capt. Smith asked an appeals court this month to take the case and settle the issue once and for all.

“There is a good deal of good faith questioning amongst many serious officers about the problematic legality of the war,” said Bruce Ackerman, a law professor at Yale who has spoken with Mr. Smith numerous times.

“He is representative of a much larger group of people who on the one hand, as most Americans, believe the war against the Islamic State is a serious and valuable component in our foreign policy, and on the other hand, are committed to the Constitution,” the professor said.

Capt. Smith makes for an unusual plaintiff. Unlike Vietnam War-era holdouts, he is not a conscientious objector. He joined the military in 2010 and first served in Afghanistan, then was deployed to Kuwait as part of the intelligence team supporting the coalition trying to oust the Islamic State from Iraq.

But even as he and his comrades were cheering victories over the armed insurgents, he told the court, he began to wonder, “‘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.

“My conscience bothered me. When I was commissioned by the president in May 2010, I took an oath to ‘preserve, protect and defend’ the Constitution of the United States,” said Mr. Smith.

U.S. District Judge Colleen Kollar-Kotelly, who ruled against Capt. Smith last year, said he never showed he suffered a particular injury to himself so he didn’t have standing to sue.

“Plaintiff offers no real support for the extremely expansive and apparently novel interpretation of the officer’s oath that would require disobedience of military orders based on an officer’s legal interpretation of whether Congress had properly authorized the broader military effort,” the judge ruled.

Capt. Smith, who remains on active duty through June, was traveling and unable to be reached, his attorney, David Remes, told The Washington Times.

But Mr. Remes said his client remains trapped.

“The District Court did not realize or appreciate the fact that he is really on the horns of a dilemma — either he obeys his orders or he honors his oath of office because his oath of office says uphold the Constitution,” the lawyer said.

Mr. Smith said he intends to continue to obey orders in support of Operation Inherent Resolve until his case is resolved.

“I can only say that after Capt. Smith filed his suit, other soldiers who support Operation Inherent Resolve sort of came up to him quietly and expressed support, but it takes a lot of courage to do this,” said Mr. Remes.

If Capt. Smith is ruled to have standing, then a critical question would be whether the Islamic State organization is rightly considered an offshoot of al Qaeda.

A 2001 vote by Congress did authorize military action against the perpetrators of the Sept. 11, 2001, terrorist attacks, and against any allied forces such as the Taliban that provided safe haven in Afghanistan for al Qaeda.

The Obama administration argued that the Islamic State used to be known as al Qaeda in Iraq, or AQI, before it had a falling-out with core al Qaeda — but those roots made it a viable target under the 2001 Authorization for the Use of Military Force, or AUMF.

Capt. Smith, though, has filed briefs by a group of Islamic scholars who say the connection is tenuous at best.

Michael Glennon, a law professor at Tufts University who signed onto legal briefs backing Capt. Smith, said it was unusual for a plaintiff like Mr. Smith to challenge war powers despite supporting the war.

“Most war powers challenges in the past have been raised by draft resisters or servicemen who otherwise disagreed with the underlying policy, so it’s in fact somewhat unusual that the individual in question is supportive of the policy,” said Mr. Glennon. “However, it’s easy to understand the dilemma that he’s in because he’s been given conflicting orders and he faces potential punishment either way.”

Mr. Glennon also said public polling indicates that Americans think the president shouldn’t wage war without approval from Congress.

“If the press reports it more fully, I think the public would be quite outraged,” he said.

Mr. Remes thinks the appellate court will schedule oral arguments in the fall, with the decision possibly coming down later this year.

If Mr. Smith’s case is successful, then President Trump would need congressional approval to continue the war against the Islamic State or have 30 days to stop the military operation.

But Stephen Vladeck, a law professor at the University of Texas, predicted that the appeals court would uphold the district court’s ruling.

“I think there’s a lot of merit to Capt. Smith’s claim — and a very difficult question of statutory interpretation concerning whether the 2001 use of force authorization can fairly be read to encompass the Islamic State,” Mr. Vladeck said.

“But,” he added, “courts have historically been quite reluctant to resolve such fraught questions about the separation of war powers — and have looked for any plausible way to rule in the case without reaching the merits.”

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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