Smith v. Obama

• Decision Date: 21 November 2016
• Docket Number: Civil Action No. 16-843 (CKK)
• Citation: 217 F.Supp.3d 283
• Parties: Nathan Michael SMITH, Plaintiff v. Barack H. OBAMA, Defendant.
• Court: U.S. District Court — District of Columbia

217 F.Supp.3d 283

Nathan Michael SMITH, Plaintiff

v.Barack H. OBAMA, Defendant.

Civil Action No. 16-843 (CKK)

United States District Court, District of Columbia.

Signed November 21, 2016

David H. Remes, Silver Spring, MD, for Plaintiff.

Sam M. Singer, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Plaintiff is a U.S. Army Captain who was deployed, until recently, to the Kuwait headquarters of the Combined Joint Task Force-Operation Inherent Resolve. Operation Inherent Resolve is the designation the U.S. Department of Defense has given to the military campaign against the Islamic State of Iraq and the Levant ("ISIL")¹ initiated by the United States and its allies in 2014. Plaintiff considers the operation to be a "good war" and "what [he] signed up to be part of when [he] joined the military." Nonetheless, Plaintiff seeks a declaration that Operation Inherent Resolve is illegal because Congress has not authorized it. Specifically, Plaintiff alleges that President Barack H. Obama has not sought Congress' authorization for military action against ISIL in accordance with the War Powers Resolution, and that neither the President's Commander-in-Chief power, nor prior Congressional authorizations for the use of force, give the President the authority to continue these actions. Plaintiff acknowledges that whether military action has been duly authorized is generally a question "Congress is supposed to answer," but complains that Congress is "AWOL." Plaintiff also claims that the Take Care Clause requires President Obama to publish a "sustained legal justification" for Operation Inherent Resolve to enable Plaintiff to determine for himself whether this military action is consistent with his oath to preserve and protect the Constitution.

Before the Court is Defendant's [9] Motion to Dismiss. Defendant argues that this Court lacks jurisdiction over Plaintiff's claims for a number of reasons. Specifically, Defendant argues that (1) Plaintiff's claims raise non-justiciable political questions, (2) Plaintiff lacks standing, (3) there has been no waiver of sovereign immunity, and (4) Plaintiff cannot obtain equitable relief against the President.

Upon consideration of the pleadings,² the relevant legal authorities, and the record as a whole, the Court GRANTS Defendant's [9] Motion to Dismiss. First, the Court determines that Plaintiff does not have standing because the specific legal injury about which he complains is not sufficiently concrete or particularized. Second, the Court finds that Plaintiff's claims raise non-justiciable political questions.

I. BACKGROUND

A. Operation Inherent Resolve

On September 10, 2014, President Obama announced to the American people that America would "lead a broad coalition to roll back" the "terrorist threat" posed by ISIL.³ The President announced that the United States would "degrade and ultimately destroy ISIL through a comprehensive and sustained counterterrorism strategy," which included "a systematic campaign of airstrikes," increased "support to forces fighting these terrorists on the ground," counterterrorism strategies, and humanitarian assistance. Id. The President stated that he had "secured bipartisan support for this approach here at home," and that although he had "the authority to address the threat from ISIL," he "welcome[d] congressional support for this effort in order to show the world that Americans are united in confronting this danger."Id. The Department of Defense later designated this effort "Operation Inherent Resolve."⁴

Following his address, on September 23, 2014, the President sent a letter to Congress reiterating that he had "ordered implementation of a new comprehensive and sustained counterterrorism strategy to degrade, and ultimately defeat, ISIL."⁵ In this letter, President Obama explained the military actions he had ordered, and stated that:

I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional and statutory authority as Commander in Chief (including the authority to carry out Public Law 107–40 and Public Law 107–243 ) and as Chief Executive, as well as my constitutional and statutory authority to conduct the foreign relations of the United States.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution (Public Law 93–148 ). I appreciate the support of the Congress in this action.

Id. Public Law 107-40 and Public Law 107-243, referenced by the President, were passed by Congress in 2001 and 2002, and each constitute specific authorization for the use of military force. First, in response to the terrorist attacks of September 11, 2001, Congress passed a Joint Resolution to "authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States." Authorization for Use of Military Force, Pub. L. No. 107–40, 115 Stat. 224 (2001) ("2001 AUMF"). The 2001 AUMF states that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Pub. L. No. 107–40, § 2(a). It also states that "[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." Pub. L. No. 107–40, § 2(b)(1).

Second, in 2002 Congress passed a Joint Resolution authorizing the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to ... defend the national security of the United States against the continuing threat posed by Iraq." Authorization for Use of Military Force against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(a)(1), 116 Stat. 1498 (2002) ("2002 AUMF"). The 2002 AUMF also states that "[c]onsistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." Pub. L. No. 107-243, § 3(c)(1).

The President's determination that ISIL was an authorized target pursuant to the 2001 and 2002 AUMFs was expanded on in a speech given by Stephen W. Preston, the General Counsel of the Department of Defense, at an annual meeting of the American Society of International Law on April 10, 2015.⁶ Preston explained that ISIL was an appropriate target under the 2001 AUMF because the group had long fought the United States alongside al Qaeda, which was responsible for the September 11th attacks. Preston stated that ISIL had previously been known as al Qaeda in Iraq after its leader, Abu Musab al-Zarqawi, had pledged his allegiance to Osama bin Laden in 2004. Id. He stated that "[f]or years afterwards, al-Zarqawi's group, often referred to as al-Qa'ida in Iraq, or AQI for short, conducted numerous deadly terrorist attacks against U.S. and coalition forces, as well as Iraqi civilians, using suicide bombers, car bombs and executions. In response to these attacks, U.S. forces engaged in combat—at times, near daily combat—with the group from 2004 until U.S. and coalition forces left Iraq in 2011." Id. Based on this history, Preston explained that "[t]he 2001 AUMF has authorized the use of force against the group now called ISIL since at least 2004, when bin Laden and al-Zarqawi brought their groups together." Id. He went on to explain that:

The recent split between ISIL and current al-Qa'ida leadership does not remove ISIL from coverage under the 2001 AUMF, because ISIL continues to wage the conflict against the United States that it entered into when, in 2004, it joined bin Laden's al-Qa'ida organization in its conflict against the United States. As AQI, ISIL had a direct relationship with bin Laden himself and waged that conflict in allegiance to him while he was alive. ISIL now claims that it, not al-Qa'ida's current leadership, is the true executor of bin Laden's legacy. There are rifts between ISIL and parts of the network bin Laden assembled, but some members and factions of al-Qa'ida-aligned groups have publicly declared allegiance to ISIL. At the same time, ISIL continues to denounce the United States as its enemy and to target U.S. citizens and interests.

In these circumstances, the President is not divested of the previously available authority under the 2001 AUMF to continue protecting the country from ISIL—a group that has been subject to that AUMF for close to a decade—simply because of disagreements between the group and al-Qa'ida's current leadership. A contrary interpretation of the statute would allow the enemy—rather than the President and Congress—to control the scope of the AUMF by splintering into rival factions while continuing to prosecute the same conflict against the United States.

Id. Preston also explained that "[t]he President's authority to fight ISIL is further reinforced by the" 2002 AUMF because "[a]lthough the threat posed by Saddam Hussein's regime in Iraq was the primary focus of the 2002 AUMF, the statute, in accordance with its express goals, has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq." Id.

B. Plaintiff's Military Service and Complaint

Plaintiff joined the military in 2010. Compl. for Decl. Relief, ECF No. 1 ("Compl.") ¶ 4. At the time his Complaint was filed, Plaintiff was a U.S. Army Captain deployed to Kuwait as an intelligence...