Soldier May Sue to End ISIS War

From U.S. News & World Report:

Last October, the Obama administration blew past the 60-day deadline for an armed conflict to be authorized by Congress or ended and continued bombing the Islamic State group. Many scholars say the air war has since then been illegal.

Now, a lawsuit seeking to prove the war is unlawful may be on its way.

The lawsuit, still a hypothetical, would be brought by an active-duty member of the U.S. military challenging an order related to the campaign against the jihadi group in Iraq and Syria.

Such a lawsuit could conceivably break new legal ground and result in either an end to the U.S. military campaign or, perhaps more likely, prompt Congress to authorize it.

Yale University law professor Bruce Ackerman floated the idea in July and received a warm response from the group Iraq Veterans Against the War, whose co-director, Matt Howard, said they would be happy to help interested troops.

So did anyone bite? Yes, Ackerman says.

“I’ve received some confidential expressions of interest, but I can’t go public on anything at this time,” he tells U.S. News.

The potential lawsuit, he says, remains “a big if, at present.”

But if it happens, the challenge may put to the test President Barack Obama's controversial claim that dated war authorizations allow for the conflict.

Obama announced airstrikes against the Islamic State group in Iraq on Aug. 7, 2014, as the jihadis approached Irbil, the capital of Iraqi Kurdistan, and besieged members of the Yazidi religious minority on a mountaintop. The airstrikes expanded to Syria in September, after the group beheaded two U.S. journalists.

The Obama administration claims it has legal authority to conduct the strikes through a 2001 Authorization for Use of Military Force (AUMF) issued against the perpetrators of 9/11 and a 2002 AUMF passed to topple Iraqi dictator Saddam Hussein.

The White House supports repeal of the 2002 AUMF and primarily leans on the anti-al-Qaida authorization, citing historical post-9/11 associations between the extremist groups. Al-Qaida and its Syrian affiliate, however, are involved in a bitter rivalry and on-the-ground fighting against the Islamic State group.

Administration officials say they would welcome a new authorization from Congress specifically for the current war, but that it’s legally unnecessary. Many scholars strongly disagree, particularly regarding strikes inside Syria.

But Ackerman’s idea isn’t necessarily a sure bet. “I wouldn’t take that case on a contingency basis!” Eugene Fidell, co-founder of the National Institute of Military Justice, said when the idea was offered. Although he agrees the war is unauthorized, Fidell said a judge would likely find the soldier’s lawsuit deals with a political matter and dismiss it, though Ackerman doubts it.

The case, in theory, would have a better likelihood of success than other recent lawsuits alleging violations of the War Powers Resolution of 1973, which allows for the 60 days of unauthorized conflict, plus a 30-day withdrawal period. Most cases fail on standing, such as a lawsuit filed by 10 members of Congress against Obama’s bombing campaign to help drive Libyan dictator Moammar Gadhafi from power, which Congress did not authorize.

The soldier, Ackerman believes, could easily clear the standing burden by showing a “concrete and particularized” injury fairly traceable to the challenged action and redressable by a favorable ruling. Then, he believes, they would prevail on the merits of their claim.

Rep. Jim McGovern, D-Mass., one of the most vigorous critics of the current war lacking congressional authorization, told U.S. News in July he’s uncertain how such a lawsuit would fare, but “if someone [sues] it clearly raises awareness and pressure on Congress" to act.