Backers Surrender After Latest Blow to Anti-War Suit

Posted March 18, 2003 at 6:05pm

Opponents of a U.S. military strike against Iraq abandoned a legal challenge seeking to block President Bush from launching war after a federal appeals court in Boston rejected their claims for a second time Tuesday.

“I think this is no longer able to be pursued,” lead attorney John Bonifaz said in a telephone interview minutes after the 1st U.S. Circuit Court of Appeals handed down a one-page ruling that reaffirmed its March 13 dismissal of the case.

Bonifaz, representing 12 House Democrats and a number of active-duty soldiers and military families opposed to an invasion, had refiled an emergency petition Monday afternoon. In a lawsuit that developed only a month ago, the plaintiffs sought an injunction to prevent Bush from launching an invasion because Congress, failing to formally declare war, had improperly delegated its constitutional war-making powers to the president when it passed a resolution authorizing the use of force against Iraq last October.

The legal challenge, always considered an uphill battle, moved quickly through the court system but met defeat at every turn.

In its March 13 ruling dismissing the case, a three-member panel said it was doing so because the issue wasn’t yet ripe for judicial review. The opinion, though, appeared to leave the door open for a future challenge, particularly on the adequacy of the October Congressional authorization in the absence of a United Nations mandate.

But in its one-page March 18 ruling, the same three-member panel shut the door.

“Although some of the contingencies described in our opinion appear to have been resolved, others have not. Most importantly, Congress has taken no action, which presents a ‘fully developed dispute between the two elected branches.’ Thus the case continues not to be fit for judicial review. … The petition is denied,” the court said.

Bonifaz said the decision spelled the end of the case. He criticized the panel’s March 18 ruling for contradicting its own earlier ruling: “They created a new hurdle today which did not exist on Thursday. Now, they are saying there must be some additional dispute beyond the dispute we originally put forward.” Bonifaz insisted that the suit laid out an ample area of dispute over the power to make war that is demanding of judicial attention. “Congress conditioned war on U.N. approval. The president wants to go down the war path unilaterally. That’s the dispute,” Bonifaz said.

“This is an opinion that contradicts the court’s own opinion issued only days ago,” Bonifaz said. “It’s a complete abdication of judicial responsibility. History will show that these judges are wrong, this president is wrong and this Congress is wrong. This is an absolutely unconstitutional and illegal war. It’s unfortunate that all three branches are now colluding together to thwart the Constitution,” he added.

When the same panel issued its March 13 ruling that upheld the suit’s dismissal, Bonifaz nonetheless expressed a sense of victory because the court seemed to consider the issue carefully and concluded that it might have some role to play when the time was ripe and all political and diplomatic maneuvering had ended.

“The case before us is a somber and weighty one,” Circuit Judge Sandra Lynch, a Clinton appointee, wrote for the panel. “We have considered these important concerns carefully, and we have concluded that the circumstances call for judicial restraint.”

In a footnote, the panel maintained that: “This conclusion does not necessarily mean that similar challenges would never be ripe for decision before military action began; we reiterate the case-specific nature of the ripeness inquiry. Here, too many crucial facts are missing.”

Still, legal scholars said it would be extremely difficult to successfully draw the courts into an area of war and foreign policy that has traditionally rested in an ongoing struggle between the president and Congress. And in order to win, the plaintiffs would have to succeed in challenging the validity of the October resolution, which, approved overwhelmingly by Congress, granted broad power to Bush to use the military in connection to any threat arising from Iraq.

The October resolution didn’t specify that the use of force was contingent on the approval of the United Nations. Bonifaz, however, joined by 74 law professors, argued that the Congressional intent behind the resolution contemplated that the United States would act under the authority of the United Nations and that it would not engage in a unilateral attack on Iraq.

Other legal experts doubted that the October resolution could be successfully challenged. “The only constitutional question is whether there is a sufficient definite determination or did Congress essentially write the president a blank check?” according to George Washington University law professor Peter Raven-Hansen. [IMGCAP(1)]

“But even when Congress does declare war, they don’t specify when and where it will start. So that’s no indictment of the resolution. Congress has delegated authority to the president in the past in other areas. So the October resolution doesn’t look so unusual when compared to other delegations,” Raven-Hansen said.

The resolution, he said, “reflects the decision by Congress that if the diplomatic effort fails, as the president may determine, then the risk that Iraq poses is sufficient for him to go to war. And I think that is probably all they have to do,” he said.

Rep. Dennis Kucinich (D-Ohio), who along with 11 other House Democrats joined the lawsuit, continued to insist Tuesday that Congress needed to formally declare war before an invasion can be launched.

“Contrary to popular belief, Congress has not given the president the authorization to go to war. Article I, Section 8 of the Constitution, clearly requires a declaration of war,” Kucinich said.

“In our nation, the president is not king. If this administration intends to undertake the burden of launching a pre-emptive war against Iraq, it must seek and receive a declaration of war from the United States Congress. Our Constitution requires nothing less,” he added.

Other lawmakers disagreed.

“The president has all the authority he needs,” said Sen. Orrin Hatch (R-Utah). “He has the authority under the Constitution to protect the national security of the United States.”

Sen. Mitch McConnell (R-Ky.) noted that the “president’s authority doesn’t come from the United Nations. We don’t have to ask the U.N. for permission to deploy U.S. troops overseas. The president’s got the authority, we gave it to him last fall.”