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A courageous but probably futile federal lawsuit

On Wednesday, one day after a Navy SEAL became the third acknowledged U.S. combat fatality in the campaign against ISIS, major news organizations reported that an Army captain currently serving in Kuwait is suing President Obama for conducting an illegal war.

In an action filed in the U.S. Court for the District of Columbia, Capt. Nathan Michael Smith has requested a declaratory judgment as to whether U.S. military operations in Iraq and Syria are constitutional, and his own participation in them legal. 

Smith's suit argues that those operations violate both Article 1 of the Constitution, reserving to Congress the sole power to declare war, and the 1973 War Powers Act, requiring the president to seek Congressional approval within 60 days of committing U.S. forces to combat.

Until recently, of course, notwithstanding contrary evidence including months of airstrikes against ISIS targets in Iraq, Syria, and recently Libya, administration officials have resolutely refused to acknowledge that U.S. forces are in combat at all.

Instead, even as U.S. ground forces deployed in Iraq and Syria have ballooned from a few hundred to more than 4,000 personnel, administration spokesmen and the president himself have continued to insist that their mission is limited to "advising and assisting" Iraqi and Kurdish forces.

As one recent editorial complains, "the administration is trying to have it both ways and appear to be keeping the U.S. out of war while steadily building up forces in the region, increasing the number of troops deployed to combat zones, dropping bombs on enemy forces and, when necessary, engaging them in direct action."

Following an attack last month on a firebase in northern Iraq that killed one Marine and wounded four more, however, Joint Chiefs chairman Gen. Joe Dunford finally admitted to the Senate Armed Services Committee that the dead Marine in question had indeed been "killed in combat," an admission subsequently confirmed by Defense Secretary Ashton Carter.

The exchange led Sen. Daniel Sullivan (R-AK) to ask plaintively, "Why can't we level with the American people" and admit that U.S. troops in the Middle East are in combat? 

The answer lies precisely in Captain Smith's lawsuit. Admitting that U.S. forces are engaged in active combat operations risks opening the door to the very constitutional challenge that both the administration and Congress have studiously sought to evade. 

This isn't the first time that such a challenge has arisen. During the Vietnam War, notes Yale law professor Bruce Ackerman, now advising Smith, two federal courts of appeal unanimously affirmed the right of soldiers to bring such complaints.

In that case, the war ended before any case could reach the Supreme Court. No imminent end of the war with ISIS promises to moot Smith's suit. 

Note that Smith is no anti-military activist or belated pacifist in uniform. A veteran of the war in Afghanistan, he comes from a military family whose grandfather, grandmother, mother, father and sister all served with distinction. He himself joined the military in 2010, his filing asserts, because he saw it as "a force for good in the world."

In his lawsuit, Smith points out that he supports the war against ISIS on both military and moral grounds and considers ISIS itself to be an "army of butchers." But he also insists that, in waging it without explicit Congressional sanction, "President Obama is misusing limited congressional authorizations for the use of military force as a blank check to conduct a war against enemies of his own choosing." 

In fact, the president has sought the very authorization that Smith wants the court to require of him. The problem is that Congress has been no more eager to take up that authorization at the risk of the electoral punishment it might incur than the administration was to solicit it in the first place.

Instead, both have conspired in the politically convenient fiction that the original Authorization for Use of Military Force voted by Congress 15 years ago continues in force, even though applied to an entirely different enemy in an entirely different war. It's that fiction that Smith's lawsuit challenges.

Whether it will go anywhere is debatable. As a friend with extensive judicial experience notes, Smith would be in a stronger position to claim the "actual harm" typically required by the courts to take up such a case had he refused a direct order and been court-martialed.

Too, there's the fact that, even were operations against ISIS held to be unconstitutional, in violation of the War Powers Act, or both, a nonjudicial remedy is readily available. It's called impeachment.

Of course, that would require our legislators to confront the very politically unwelcome questions that they thus far have resolutely avoided. Don't hold your breath waiting for that to happen.

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