Yale law professor Bruce Ackerman ’67 and attorney David Remes last month presented the oral argument in Smith v. Trump — a case that could establish a precedent against the unilateral deployment of troops by U.S. presidents — before the U.S Court of Appeals for the District of Columbia.
Army Captain Nathan Smith, a former intelligence officer at the command headquarters in Kuwait, filed a lawsuit in 2016 challenging the legality of the war against the Islamic State in Iraq and Syria under the War Powers Act of 1973. The act required former President Barack Obama to obtain congressional authorization within 60 days of deploying U.S troops, a process Obama failed to follow. While the district court dismissed the case in November 2016, Smith, aided by Ackerman and Remes, is now appealing the dismissal. A victory for Smith would set a precedent, preventing Trump and future presidents from waging a war without congressional authorization.
“If the court does not enforce or recognize Smith’s standing and enforce the War Powers Act, not only President Trump but every future president has a precedent for continued unilateral war-making,” Ackerman said. “We are at the turning point in the history of the United States.”
In the Oct. 27 hearing, Remes and Ackerman invoked Barreme v. Little, a foundational court decision in 1802. They presented the court’s decision that a military officer must disobey the orders of his commander in chief if they violate congressional laws limiting the president’s war-making powers.
In addition, during the argument, Ackerman focused on the history behind the statutory oath and officer’s oath. While the statutory oath requires enlisted personnel to obey the commands of superiors, the officer’s oath demands exclusive loyalty to the Constitution.
In interviews with the News, Ackerman, Remes and Smith all agreed that the October hearing went well. The hearing went on for an hour, Ackerman said, even though it was scheduled to take 30 minutes.
“I don’t engage in predictions, but the fact that this is not only about Trump made them take the case openly and seriously,” Ackerman said.
Congress enacted the War Powers Act in 1973 to prevent then-President Richard Nixon from unilaterally waging war against Vietnam. Under the act, a president cannot deploy troops for more than 60 days without “specific statutory authorization” from Congress. If the president fails to obtain congressional approval, he is required to withdraw the troops within 30 days.
But on Sept. 10, 2014, Obama initiated open-ended action against ISIS in Iraq and Syria. Instead of seeking congressional approval, the government argued that the two Congressional authorizations for use of military force from 2001 and 2002, which supported military operations against Al Qaeda and Saddam Hussein, provided sufficient legal authority for the president to wage war against ISIS.
“Regardless of what I think about the wisdom of his decisions, George Bush complied with the War Powers Act when he invaded Afghanistan and Iraq,” Ackerman said. “In contrast, Obama didn’t obtain an authorization, and it’s being used as a precedent for Trump to continue the war with ISIS in Syria, Iraq and even southern Africa.
In an interview with the News, Remes also argued that the 2001 authorization for use of military force did not justify Obama’s war against ISIS.
“For the president to rely on this authority as the basis for the war against ISIS essentially treats the 2001 [authorization] as an unlimited grant to war-making power, enabling the president to wage war anywhere, any time and against anyone he somehow claims a wing to Al Qaeda,” Remes said.
Ackerman criticized the Obama administration’s argument in a series of magazines and scholarly journals. In a 2015 essay in The Atlantic, Ackerman claimed that “the biggest casualty in the struggle against the Islamic State so far has been the American Constitution.” He argued that the 2001 congressional authorization should not permit military force against the IS, a group that did not exist until 2004.
Smith said he read Ackerman’s article in October 2015 during his deployment in Kuwait, when he was already questioning the constitutionality of the mission. The decision to file a lawsuit was difficult, Smith said. He not only had to withdraw from service but also risked being court-martialed.
“I’m the third-generation military officer in the family. I took the oath to always defend the Constitution very seriously,” Smith said. “I realized that this is what my oath dictated me to do, and I would accept the consequences that came in my way.”
In November 2016, the case was dismissed in U.S. District Court, partly on the grounds that the court did not have authority to resolve a case about conflict between the executive and legislative branches. Smith said he found the decision frustrating because “the court never addressed the merits of the case.”
“What was I supposed to do?” Smith asked. “I still have friends deployed in Kuwait. Their options are either risking their lives for what they think is an unconstitutional mission or getting court-martialed and going to jail.”
A decision in Smith v. Trump from the Court of Appeals is expected later this year or by early 2018.
Serena Cho | email@example.com