Court Rejects Challenge to War Against Islamic State

WASHINGTON (CN) – A federal judge threw out civil claims by a U.S. Army captain who accused President Barack Obama of waging an illegal war against the Islamic State group.

Capt. Nathan Michael Smith filed the complaint back in May, saying that he has repeatedly questioned the constitutionality of going to war against the Islamic State, despite being sickened by the “savagery” embraced by the group, often abbreviated as ISIL or ISIS, which he called an “army of butchers.”

U.S. District Judge Colleen Kollar-Kotelly tossed the suit Tuesday, saying Smith lacks standing and that his suit raises nonjusticiable political questions.

“Certain aspects of the questions posed by this case are indisputably and completely committed to the political branches of government,” the 34-page opinion states.

Judge Kollar-Kotelly noted that the factual questions Smith raised “are not of the type that the court is well-equipped to resolve.”

Instead, the “questions presented in this case require judicial inquiry into sensitive military matters about which the court lacks the resources and expertise,” the ruling continues.

David Remes, an attorney for the captain, called Kollar-Kotelly’s ruling “deeply worrisome.”

“It sets a very dangerous precedent by blocking off challenges to unlawful presidential wars,” Remes said in an email. “We will immediately ask the D.C. Circuit to reverse the decision.”

As alleged in his complaint, Capt. Smith had argued that President Obama violated both the Constitution and the War Powers Act when he began operations combating ISIL in earnest in 2014.

The War Powers Act limits combat operations at 60 days if the president is not given full U.S. congressional authorization.

Obama invited Congress in September 2014 to approve his bombing campaign against a growing ISIS threat as a courtesy, but the president said his actions were protected under the Authorization for Use of Military Force.

Congress passed this authorization, often abbreviated as AUMF, just days after the attacks on Sept. 11, 2001. It empowers the United States to use armed forces against those responsible for the attacks. Obama qualified his actions saying that, since ISIS fighters were a spinoff of the terrorist al-Qaida network, AUMF protections covers the use of force against them.

Judge Kollar-Kotelly noted that Capt. Smith disputed this, “relying on an affidavit from scholars of Islamic Law that argue that as of today, [al-Qaida and ISIS] are in fact sufficiently distinct and potentially even antagonistic.”

Declining to reach the merits of this issue, however, the court said that the dispute “would require inquiries into sensitive military determinations.”

The soldier’s attorney, Remes, accused Kollar-Kotelly of setting “a dangerous precedent,” effectively saying presidents do not need specific, affirmative authorization from Congress to go to war.

“It also lets the president continue to rely on the 15-year-old 2001 Authorization for Use of Military Force, which was a response to 9/11, to support his war against ISIS, which didn’t even exist in 2001,” Remes said of the ruling in an email.

Kollar-Kotelly meanwhile noted that Obama’s position aligned with the belief of Department of Defense officials “that ISIL is connected with Al Qaeda and that, despite public rifts, some allegiances between the groups persist and ISIL continues to pursue the same mission today as it did before allegedly splintering from Al Qaeda.”

Remes questioned how far such authorization can go.

“Are there any limits to the 2001 AUMF?” the attorney asked. “Will presidents be allowed to use the 2001 AUMF to go to war against anyone, anytime, and anyplace, just by claiming a link with al-Qaeda? We will ask the courts to answer those questions with a resounding ‘no.’”

Kollar-Kotelly had noted that Congress essentially ratified President Obama’s war efforts against ISIS in continuing to allot billions of dollars for the campaign.

Congress considered and approved $5.6 billion for Operation Inherent Resolve in November 2014, after the president sent a letter to the speaker of the House of Representatives proposing that the amendment be wedged into the 2015 budget.

The letter specifically stated that the $5.6 billion would be used to “degrade and ultimately defeat the Islamic State of Iraq and the Levant (ISIL).”

Furthermore, Congress passed the Consolidated and Further Continuing Appropriations Act of 2015 a month later, and passed the act again in 2016, all with the understanding that the war against ISIS would continue with full authorization.

Capt. Smith had been deployed in Kuwait until recently. Stationed now at Fort Hood in Texas, he could be redeployed anytime through 2018. The soldier’s attorney, Remes, has represented at least a dozen detainees from Guantanamo Bay over the years.

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