The latest skirmish: a civil lawsuit to enjoin the Bush Administration from war
In Massachusetts, 12 plaintiffs filed suit today in federal court seeking to enjoin President George Bush and Defense Secretary Donald Rumsfeld from waging war on Iraq without an explicit declaration of war from Congress. The plaintiffs include members of Congress (John Conyers, Jesse Jackson Jr., Dennis Kucinich, Jim McDermott, Jose Serrano), as well as ordinary citizens affected by the war -- including active and reserve military personnel.
"A coalition of plaintiffs... hereby bring this action challenging, under Article I, § 8 of the United States Constitution, the authority of Defendant President George W. Bush and Defendant Secretary of Defense Donald H. Rumsfeld (hereinafter "Defendants") to wage war against Iraq, absent a clear declaration of war by the United States Congress."
The parties have also requested an expedited hearing for their case, given that the President has said it will be "weeks not months" before he conducts decisive action against Iraq.
"... Each of the Plaintiffs faces imminent harm from the war threatened by the Defendants. The Plaintiff service people have the most to lose - their lives and limbs - in an illegal war. The Plaintiff parents risk the loss or injury of their children in the service when an undeclared war commences. The Plaintiff Congressional Representatives are threatened with losing their constitutional right and authority to be the decision makers, representing their constituencies, as to whether the United States will enter a war with Iraq. The Plaintiffs meet the standards for issuance of a preliminary injunction, as the accompanying memorandum of law demonstrates."
Analysis: Of course, this is a political tactic. It's an ironic twist on Clausewitz, who wrote that war is a continuation of politics by other means. Here, you have a situation where law is a continuation of politics by other means. (This begs the question: is law really a form of warfare?) Congress has taken up this issue, and to the chagrin of these anti-war activists, passed a Joint Resolution authorizing the use of force in Iraq to enforce UN Security Council resolutions. Congress has also passed a resolution to authorize the use of force in America's war on terrorism.
The courts have never -- and probably will never -- hold that the President needs an explicit declaration of war before committing US troops abroad. That would unconstitutionally infringe on his power as Commander in Chief of the military. In several wartime cases, the Supreme Court has held that Presidential decisions to commit troops to combat without such a declaration have been lawful. There's no reason why they would change that holding in this case. (But see, plaintiffs' memorandum of law in support of their arguments) Unless this suit finds a very receptive federal judge, it will die in U.S. District Court. And even if it proceeds, it will not succeed.
Update: The AP reports that "There has been no response yet from the Bush administration. The lawsuit seeks a preliminary injunction and an expedited hearing. An expedited hearing was granted, and a federal judge will hear the case next Thursday."