The U.S. Supreme Court is AWOL on Iraq

February 1, 2005
By Gene C. Gerard

In December, the Supreme Court opted not to hear the civil suit Clair Callan Vs. President George W. Bush. The case has slowly made its way through the lower courts, which have rejected it on the grounds that they have no jurisdiction to hear the suit, or that Mr. Callan does not have a lawful cause of action.

The plaintiff in the suit is a senior citizen and former Congressman from Nebraska. The suit alleges that the president violated American law by invading Iraq.

Specifically at issue is compliance with the War Powers Act. In 1973, a post-Vietnam War Congress wanted to ensure that no future president could send troops into battle without just cause and congressional oversight. Consequently, it passed a law, known as the War Powers Act, which permits the president to introduce the military into combat "where imminent involvement in hostilities is clearly indicated by the circumstances."

Congress was very determined that this requirement be met before sending troops overseas, as is evidenced by the fact that this verbiage appears in the act four times. The act further stipulates that the president has 60 days to obtain from Congress a declaration of war, or specific approval for the continued use of the military, otherwise the troops must be withdrawn.

This civil suit accuses the president of failing to meet the requirements of the act. Although Congress in 2002 did give the president approval to use the military against Iraq, the suit alleges that "imminent involvement" by the military was not "clearly indicated by the circumstances."

Leading up to the war, and subsequent to it, President Bush used phrases such as "a gathering threat" to describe the necessity of military action. In fact, in his State of the Union address in 2003, he remarked that "Some have said we must not act until the threat is imminent… If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late." As such, this case clearly has merit.

The civil suit may well be valid in another respect. The Congress that passed the War Powers Act was concerned with the lack of an exit strategy in Vietnam. In an effort to prevent any future administration from entering into a war without a plan to extricate American forces from it, the act requires that the president periodically report on the "estimated scope and duration of the hostilities or involvement" to Congress.

The White House has found this conspicuously difficult to do since invading Iraq. The administration’s justification for not including the on-going cost of the war in Iraq and Afghanistan in its budget has been that it cannot predict how many forces will ultimately be needed, how much money will be spent, or how long this military action will last. The president has said repeatedly that he does not know when the troops will get to come home, only that they will not stay longer than necessary. Given that, this would seem to be a further violation of the act.

Not surprisingly, most presidents have tried to ignore the War Powers Act, and have seen it as an infringement of the powers of the Executive Branch. In fact, President Nixon attempted to veto the act. When criticized, presidents have typically cited Article II, Section 2 of the Constitution which stipulates that “"The president shall be Commander-in-Chief of the Army and Navy of the United States."

President Reagan ignored the act when he undertook military action in Grenada, Lebanon, Libya, Central America, and the Persian Gulf. President Bush said the act didn't apply to military engagements in Panama, and initially, the Gulf War. President Clinton did much the same with regard to military deployments in Haiti, Somalia, Bosnia, and Iraq.

Bush is not the first president to face litigation over the act. In 1991, 52 members of Congress filed a lawsuit in federal court against President Bush, accusing him of failing to meet the requirements of the War Powers Act as he prepared for the Gulf War. While the court admitted that the case was legitimate, it ultimately decided that it could not render a verdict since Congress had not decided if a declaration of war was necessary. Although Bush initially maintained that the act did not apply, he ultimately sought and received congressional approval.

In the civil suit Campbell Vs. Clinton, 17 members of Congress sued President Clinton for engaging in the bombing of Yugoslavia in 1999 in violation of the act. In this instance, the court ruled that since Congress had neither approved of nor blocked continuation of the military campaign in Yugoslavia, there was not a constitutional impasse, and therefore there was no need to issue a ruling.

What makes this current civil suit so urgent is the scope and complexity of the military's involvement in Iraq. Currently, there are approximately 140,000 American troops serving there. They face the most aggressive insurgency of any conflict since the war in Vietnam. And the Pentagon is actively constructing twelve permanent military bases in Iraq.

In failing to accept and hear the civil suit, the Supreme Court has abdicated its constitutional role. This was an opportunity for the justices to settle a cumbersome, thirty-year-old legal, political, and military question that has divided the legislative and executive branches. As President Clinton was defending his use of the military in 1999, a senior White House official remarked that "The whole War Powers Act is a very vague and hazy area. It's never been tested to the Supreme Court level."

More importantly, the Court could have provided some semblance of legitimacy in the invasion of Iraq, by validating the president's use of the military. Or, it could have provided a way out of the war, by finding that military action, in this instance, was unlawful.