Army Captain Fights Obama in Court on War Powers

WASHINGTON (CN) - A conflicted U.S. Army captain filed a federal complaint Wednesday that says President Obama waged an "illegal" war against the Islamic State.

Capt. Nathan Michael Smith wants the U.S. District Court in Washington to make Obama obtain congressional authorization for the war, or cease military operations.

In a declaration attached as exhibit to his 14-page complaint, 28-year-old Smith says he joined the U.S. military in 2010, believing in its power to do good in the world.

When the president ordered airstrikes in Iraq two years ago against the Islamic State, often abbreviated as ISIS or ISIL, Smith stood ready for action.

Smith said he considers the group "an army of butchers," and that he and his colleagues cheered "every airstrike and setback" for ISIL.

But the intelligence officer's conscience began to pester him, according to the complaint, while stationed in Kuwait at Camp Arifjan, the headquarters commanding all forces fighting against the Islamic State.

"I began to wonder, 'Is this the Administration's war, or is it America's war?'" the complaint says, quoting Smith's declaration. "The Constitution tells us that Congress is supposed to answer that question, but Congress is AWOL."

Smith contends that Obama's war "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, without geographical or temporal boundaries."

"President Obama has continued the use of the armed forces in hostilities in those countries for twenty months without having obtained from Congress either a declaration of war of 'a specific statutory authorization' for its use," the complaint states.

Smith also claims that Obama failed to issue any serious legal justification for the war from the Office of Legal Counsel or the White House Counsel. He says the White House has never even acknowledged if it sought their opinions.

"If the president has indeed failed to request their advice, this would represent a sharp break with past practice," the complaint states. "It also would bespeak a strikingly cavalier disregard for the president's duty to 'take care that the law be faithfully executed.'"

Smith hints that the president may have sought counsel's advice but kept responses under wraps because he did not like what he heard.

In the absence of legal justification, the administration has employed "ad hoc and ever-shifting legal justifications," the complaint alleges.

Smith frames the issue according to the parameters of the 1973 War Powers Resolution, which he asserts exists to prevent the kind of presidential overreach and abuse of power that Presidents Lyndon B. Johnson and Richard M. Nixon exhibited during the Vietnam War.

The Obama administration has faithfully argued that the 2001 and 2002 congressional war authorizations against al-Qaida also cover the war against ISIL, which the administration says branched off from al-Qaida.

But Smith argues that the 2001 authorization applies specifically and only to al-Qaida and the Taliban, and only in relation to the 9/11 attacks; Congress refused to authorize a broader use of force, the complaint states.

"President Obama's interpretation of the 2001 AUMF effectively converts it into the open-ended resolution that Congress deliberately rejected," the complaint continues, abbreviating authorization for the use of military force.

Smith says ISIL, a totally different animal, bears no responsibility for the 9/11 terror attacks, and that the president exceeded his authority on that basis.

Likewise, Smith claims that the 2002 authorization for the use of force in Iraq expired when the U.S. completed its troop withdrawal in December 2011, making it inapplicable to Obama's war against ISIL.

"Yet in the following months, the administration proceeded to invoke this authorization to justify its war against ISIS, despite the fact that the 2002 AUMF explicitly provided that it did not 'supersede [] any requirement of the War Powers Resolution,'" the complaint says.

President Obama did send Congress a three-page proposal for the authorization for the use of military force in February 2015 - some six months after the U.S. began bombing Iraq and Syria - but it floundered in Congress.

Obama's anti-ISIL strategy has drawn heavy criticism from the GOP, especially from Sens. Lindsey Graham, of South Carolina, and John McCain, of Arizona, who say Obama has let ISIL's threat grow.

Both have called for increased military efforts - including more boots on the ground in Iraq and Syria - to defeat ISIL.

In January, Graham proposed an essentially unlimited use of military force that would place no limits on the use of ground combat troops in the war against ISIL, nor would it restrain the duration or geography of the fight.

Smith's attorney, David H. Remes, best known for representing Guantanamo detainees, did not respond to an emailed request for comment.

Likewise, the White House did not immediately return request for comment.

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