The U.S. Supreme Court is AWOL on Iraq
February 1, 2005
By Gene C. Gerard
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the troops must be withdrawn.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
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
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.