Army Captain Sues To Prevent Obama Sloughing-Off Legal Requirement For ISIS War Authorization

Case 1:16-cv-00843 Document 1 Filed 05/04/16


Plaintiff v. BARACK H. OBAMA, President of the United States

The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500
Captain, United States Army,
ISIS Operation Inherent Resolve,
Camp Arifjan, Kuwait

Civil Action No.



Nathan Michael Smith is a U.S. Army Captain 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. Captain Smith seeks a declaration that
President Obama’s war against ISIS is illegal because Congress has not authorized it. Under the
1973 War Powers Resolution, when the President introduces United States armed forces into
hostilities, or into situations where hostilities are imminent, he must either get approval from
Congress within sixty days to continue the operation, in the form of a declaration of war or
specific statutory authorization, or he must terminate the operation within the thirty days after the
sixty-day period has expired.
The President did not get Congress’s approval for his war against ISIS in Iraq or Syria
within the sixty days, but he also did not terminate the war. The war is therefore illegal. The
Court should issue a declaration that the War Powers Resolution requires the President to obtain
a declaration of war or specific authorization from Congress within sixty days of the judgment,
and that his failure to do so will require the disengagement, within thirty days, of all United
States armed forces from the war against ISIS in Iraq and Syria.
Captain Smith suffers legal injury because, to provide support for an illegal war, he must
violate his oath to “preserve, protect, and defend the Constitution of the United States.” See Little
v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (“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.”), cited with approval in Zivitovsky v. Kerry, 135 S. Ct. 2076, 2090 (2015).
Finally, the Take Care clause required the President to publish a sustained legal
justification, within the sixty-day period required by the War Powers Resolution, to enable
Captain Smith to determine whether he can reconcile his military actions as an officer with his
oath to “preserve, protect, and defend the Constitution of the United States.” In contrast to past
practice, the President has failed to publish an opinion prepared by the Justice Department’s
Office of Legal Counsel or the White House Counsel to justify the war against ISIS. He has
instead left it to Administration spokespersons to provide ad hoc and ever-shifting legal
justifications for a military campaign that is constantly changing its strategic objectives and
escalating its use of force. This pattern of lawlessness is inconsistent with the President’s
obligation to “faithfully execute” the War Powers Resolution.
The 2001 Authorization for Use of Military Force (“2001 AUMF”) does not authorize the
war against ISIS. It authorized the President to wage war against those responsible for the attacks
of September 11, 2001 – meaning Al Qaeda – and the governments which harbored it – meaning
the Taliban. ISIS is in no way responsible for the September 11 attacks. The 2002 Iraq
Authorization for Military Force (“2002 Iraq AUMF”) also does not allow the President to wage
the war against ISIS in Iraq: the war that Congress authorized the President to wage in Iraq is
over. The Resolution does not even purport to cover military actions in Syria. The
Administration has stated that it is obsolete, and should no longer relied on for military action in
Iraq, and should be repealed.
Finally, the war exceeds the President’s constitutional authority as “commander-in-chief”
under Article II, section 2 of the Constitution. That authority does not override the War Powers
Resolution’s requirement that the President must obtain the consent of Congress within the time
specified by the Resolution before committing the country to on-going war.