Doe v. Bush
| Decision Date | 13 March 2003 |
| Docket Number | No. 03-1266.,03-1266. |
| Citation | 323 F.3d 133 |
| Parties | John DOE I, John Doe II, John Doe III, John Doe IV, Jane Doe I, Susan E. Schumann, Charles Richardson, Nancy Lessin, Jeffrey McKenzie, John Conyers, Dennis Kucinich, Jesse Jackson, Jr., Sheila Jackson Lee, Jim McDermott, Jose E. Serrano, Sally Wright, Deborah Regal, Alice Copeland Brown, Jerrye Barre, James Stephen Cleghorn, Laura Johnson Manis, Shirley H. Young, Julian Delgaudio, Rose Delgaudio, Danny K. Davis, Maurice D. Hinchey, Carolyn Kilpatrick, Pete Stark, Diane Watson, Lynn C. Woolsey, Plaintiffs, Appellants, v. George W. BUSH, President, Donald H. Rumsfeld, Secretary of Defense, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
John C. Bonifaz, with whom Cristobal Bonifaz, Law Offices of Cristobal Bonifaz, Margaret Burnham, Max D. Stern, and Stern Shapiro Weissberg & Garin were on the brief, for appellants.
Michael Avery on the brief for seventy-four concerned law professors, amici curiae.
D. Lindley Young on the brief amicus curiae in propria persona.
Gregory G. Katsas, Deputy Assistant Attorney General, with whom Robert D. McCallum, Jr., Assistant Attorney General, Michael J. Sullivan, United States Attorney, Douglas N. Letter, Attorney, Civil Division, Scott R. McIntosh, Attorney, Civil Division, and Teal Luthy, Attorney, Civil Division, were on the brief, for appellees.
Before LYNCH, Circuit Judge, CYR and STAHL, Senior Circuit Judges.
Plaintiffs are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives.1 They filed a complaint in district court seeking a preliminary injunction to prevent the defendants, President George W. Bush and Secretary of Defense Donald Rumsfeld, from initiating a war against Iraq. They assert that such an action would violate the Constitution. The district court dismissed the suit, and plaintiffs appeal. We affirm the dismissal.
In October 2002, Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 2002 (the "October Resolution"), Pub L. No. 107-243, 116 Stat. 1498. Plaintiffs argue that the October Resolution is constitutionally inadequate to authorize the military offensive that defendants are now planning against Iraq. See U.S. Const. art. I, § 8, cl. 11 (). They base this argument on two theories. They argue that Congress and the President are in collision — that the President is about to act in violation of the October Resolution. They also argue that Congress and the President are in collusion — that Congress has handed over to the President its exclusive power to declare war.
In either case, plaintiffs argue, judicial intervention is necessary to preserve the principle of separation of powers which undergirds our constitutional structure. Only the judiciary, they argue, has the constitutionally assigned role and the institutional competence to police the boundaries of the constitutional mandates given to the other branches: Congress alone has the authority to declare war and the President alone has the authority to make war.
The plaintiffs argue that important and increasingly vital interests are served by the requirement that it be Congress which decides whether to declare war. Quoting Thomas Jefferson, they argue that congressional involvement will slow the "dogs of war"; that Congress, the voice of the people, should make this momentous decision, one which will cost lives; and that congressional support is needed to ensure that the country is behind the war, a key element in any victory. They also argue that, absent an attack on this country or our allies, congressional involvement must come prior to war, because once war has started, Congress is in an uncomfortable default position where the use of its appropriations powers to cut short any war is an inadequate remedy.
The defendants are equally eloquent about the impropriety of judicial intrusion into the "extraordinarily delicate foreign affairs and military calculus, one that could be fatally upset by judicial interference." Such intervention would be all the worse here, defendants say, because Congress and the President are in accord as to the threat to the nation and the legitimacy of a military response to that threat.
The case before us is a somber and weighty one. We have considered these important concerns carefully, and we have concluded that the circumstances call for judicial restraint. The theory of collision between the legislative and executive branches is not suitable for judicial review, because there is not a ripe dispute concerning the President's acts and the requirements of the October Resolution passed by Congress. By contrast, the theory of collusion, by its nature, assumes no conflict between the political branches, but rather a willing abdication of congressional power to an emboldened and enlarged presidency. That theory is not fit for judicial review for a different, but related, reason: Plaintiffs' claim that Congress and the President have transgressed the boundaries of their shared war powers, as demarcated by the Constitution, is presently insufficient to present a justiciable issue. Common to both is our assessment that, before courts adjudicate a case involving the war powers allocated to the two political branches, they must be presented with a case or controversy that clearly raises the specter of undermining the constitutional structure.2
Tensions between the United States and Iraq have been high at least since Iraq invaded neighboring Kuwait in 1990. In 1991, the United States led an international coalition in the Persian Gulf War, which drove Iraqi forces from Kuwait. Before that conflict, Congress passed a resolution quite similar to the October Resolution. See Pub.L. No. 102-1, 105 Stat. 3 (1991). As part of the ceasefire ending the Gulf War, Iraq agreed to United Nations Security Council Resolution 687, which required that Iraq end the development of nuclear, biological, and chemical weapons, destroy all existing weapons of this sort and their delivery systems, and allow United Nations weapons inspections to confirm its compliance with these terms. See S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg., U.N. Doc. S/RES/687 (1991). Since that time, Iraq has repeatedly been in breach of this agreement by, among other things, blocking inspections and hiding banned weapons. Iraq ended cooperation with the weapons inspection program in 1998. Since 1991, the United States and other nations have enforced a no-fly zone near the Kuwaiti border and on several occasions have launched missile strikes against Iraq.
Congress has been engaged in the American response to Iraqi noncompliance throughout this period. It was well-informed about ongoing American military activities, enforcement of the no-fly zone, and the missile strikes. In 1998, Congress passed a joint resolution which chronicled Iraqi noncompliance and declared that "the Government of Iraq is in material and unacceptable breach of its international obligations, and therefore the President is urged to take appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations." Pub.L. No. 105-235, 112 Stat. 1538, 1541 (1998). Later that year, Congress also passed the Iraq Liberation Act of 1998, Pub.L. No. 105-338, 112 Stat. 3178. This statute authorized assistance, including military equipment and training, for "Iraqi democratic opposition organizations," and declared that it should be United States policy to remove Iraqi leader Saddam Hussein from power. Id. §§ 3, 4, 112 Stat. at 3179.3
The United Nations has also remained engaged in the dispute ever since the Persian Gulf War. It supervised weapons inspections, supported economic sanctions against Iraq, and, through the Security Council, repeatedly passed resolutions declaring that Iraq was not fulfilling the conditions of Resolution 687. On September 12, 2002, President Bush addressed the United Nations General Assembly. There he called for a renewed effort to demand Iraqi disarmament and indicated that he thought military force would be necessary if diplomacy continued to fail. In response, Iraq agreed to allow inspectors back into the country, but it has failed to comply fully with the earlier Security Council resolutions.
The week after his September 12 speech at the United Nations, President Bush proposed language for a congressional resolution supporting the use of force against Iraq. Detailed and lengthy negotiations between and among congressional leaders and the Administration hammered out a revised and much narrower version of the resolution. The House of Representatives passed this measure by a vote of 296 to 133 on October 10, 2002; the Senate followed suit on October 11 by a vote of 77 to 23. The full text of the October Resolution is attached as an appendix to this opinion.
On November 8, 2002, the Security Council passed Resolution 1441, which declared that Iraq remained in material breach of its obligations and offered "a final opportunity to comply with its disarmament obligations." S.C. Res. 1441, U.N. SCOR, 57th Sess., 4644th mtg., U.N Doc. S/RES/1441 (2002). It also noted that "the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." Id. In diplomatic parlance, the phrase "serious consequences" generally refers to military action. More than 200,000 United States troops are now deployed around Iraq, preparing for the possibility of an invasion.
The complaint was filed, along with motions for preliminary injunction and expedited hearing, on February 13, 2003. The district court heard oral argument on February 24 and denied the motion in an order issued that day. The court released a more detailed...
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