Army Captain Nathan Michael Smith sues President Obama
Chief Tango sends us a link from the New York Times which reports that Army Captain Nathan Michael Smith, an intelligence branch officer stationed in Kuwait has filed a law suit against the President in regards to the conduct of the war against ISIS and the President’s position that he doesn’t need authorization from Congress to wage the war because the war is part of the war that Congress authorized after 9-11-2001.
“To honor my oath, I am asking the court to tell the president that he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS in Iraq and Syria,” he wrote.
The legal challenge comes after the death of the third American service member fighting the Islamic State and as Mr. Obama has decided to significantly expand the number of Special Operations ground troops he has deployed to Syria aid rebels there.
While I agree that Congress needs to get off it’s collective fat ass and do it’s part in the war, one way or the other, I don’t think this Captain has any legal standing to sue the President. He’s clearly outside his lane. There are legal scholars who do this stuff and waste our tax money in court rooms across the country.
Administration officials have also said the fight against the Islamic State is covered separately by the 2002 authorization President George W. Bush obtained from Congress for the invasion of Iraq, although they are not relying on it.
Wait, you mean George Bush’s war against Saddam Hussein was authorized by Congress? And the New York Times admits it? Well, that’s news right there.
Anyway, Captain Smith appears to be grandstanding for the anti-Obama crowd. He has the right, certainly, but doing it in uniform has a distasteful tinge.
You may disagree, but that’s why we’re here, isn’t it?
Category: Legal
03 “Know it all” Turd.
I guess in his vast experience
STFU
Yeah.
I agree with his position but he is out of line and using his position (uniform) to make a name for himself as some sort of altruistic “moral tough guy”.
Spotlight Ranger.
10 points for the use of
SPOTLIGHT RANGER
10 more points because I lost my coffee
Me too!
Same here. That was awesome!
Awwwww…. He has plans for a political career, and needs the “name recognition” thingy in place as he sorts out the planks, platform and agenda.
I hope he has plans for a political career because he just shot his military one in the ass.
Screw that…at least he is DOING SOMETHING!!!
Lars has a little brother?
Bateman (ret) had a son?
(Master)Bateman’s wife had son, but (master)Bateman himself is but one of dozens of possible sperm donors, and not one of the more likely ones at that.
L. Taylor’s brother by another mother.
As in Joe Brotha? Sure ain’t Joe moma.
The NYT admits that there WAS authorization for GWOT??
Are they going to admit that there WERE WMDs and that Saddam Hussein stalled the UN inspectors to get time to hide them?
What is the world coming to?
I have had some on the Left tell me with a straight face that they NEVER said there weren’t any WMDs. They instead claim Hussein wasn’t MAKING WMDs. Down the memory hole again. We’ve always been at war with Eastasia.
…. and Oceania. Don’t forget Oceania.
And Dubya is Goldstein.
Yes, and the cheap, oily liquor is terrible as is the tinny music in the bar.
So what do we make of this? https://theintercept.com/2015/04/10/twelve-years-later-u-s-media-still-cant-get-iraqi-wmd-story-right/
It appears to be more nuanced than a binary question.
Seriously? That’s what you would like to claim? “He didn’t know he had it?”
Ok, let’s dance… So when the UN said “where’s the documentation showing you destroyed these materials” (in accordance with the cease fire agreement from Desert Storm) Hussein wouldn’t/couldn’t produce them. He couldn’t because the materials hadn’t been destroyed. So Saddam Hussein was in material breach of the 1991 cease fire. If we want to be technical, Bush 43 never even needed Congress’ authorization to send troops into Iraq. Because they were violating the terms of the cease fire. So the original authorizations still held. But he asked for (and received authorization anyhow).
But no, please… tell me again how Bush lied us into a war. I’m TRULY fascinated.
I didn’t say anything except that it appears more nuanced than it’s made out to be. If you have a beef, take it up with the authors. Calm down, hoss.
As I understand it, the War Powers Resolution is a gentlemen’s agreement between the President and Congress, not constitutionally based “law”.
I suspect that the captain’s head is in a dark and smelly place. I feel bad for this guy – I think he just stepped on his crank. Either that or he has just become a future Sec State.
No, it’s binding law. The loosie-goosie way it has been treated is most likely what prompts you and others to think it’s just, as you say, a gentlemen’s agreement. Here’s a link to an excellent description of the law, from the Library of Congress.
https://www.loc.gov/law/help/war-powers.php
Its binding law that gas never really been challenged by the courts. It would be interesting to see it made to stand in the courts and see its constitutional right to exist play out.
You are right. In one case, individual critters sued Clinton under it but the case was tossed. The ruling was that Congress has sufficient power to do what the hell it wants to if it has a beef with what the president does or fails to do under the act.
IMO the war powers resolution is blatantly unconstitutional because it purports to require the president to get permission of congress to exercise his authority as CinC.
However, that doesn’t matter because there is no “enforcement provision” in the WPA that doesn’t exist independently of the WPA.
To put it another way, if Congress doesn’t like what the Pres is doing with the military, Congress can simply deny the president the money he needs to keep the operation going. And THAT is a power that Congress had BEFORE the WPA was ever dreamed up, so in essence the WPA is both irrelevant and toothless.
The issue is not so clear cut inasmuch as Congress declares war under the Constitution and the pres gets to conduct it. If this were not so, one man, the president, could take us to war and conduct that war as he sees fit. And once American blood is spilled, it is very, very difficult to expect Congress to do much to reverse the situation; ergo, the War Powers Act, to prevent the president from taking us to war w/o a declaration of war by Congress. It’s an ugly beast, I’ll admit, but the exigency of some conflicts requiring our military going into action made it necessary. When we are somewhere for years and years (Iraq comes to mind) and thousands of American lives are lost and thousands more never to be the same, well, Congress SHOULD have turned off the cash flow or requested a declaration of war, I suppose. But, my point is that it isn’t as cut and dried an issue as you say, in my view.
Whether the WPA is a good idea or not is irrelevant: Under the Constitution, the President and Congress are co-equals. Congress has no more authority to demand that the president do certain things than the president has the authority to demand that Congress do certain things.
As far as the declaration of war goes, the AUMF is a declaration of war – there is no requirement that the declaration use the terms “declaration of war.”
The AUMF’s for Afghanistan, Iraq, Desert Storm, the Tonkin Gulf Resolution, the Congressional resolution that authorized US intervention in Korea in 1950 were all de facto declarations of war. So, in fact, Congress DID declare war in Iraq, and Afghanistan, and just about every other major international conflict the US has been involved in.
The myth that “the US has only declared war 4 times in its history” needs to die.
Getting back to the WPA, what if the president tells Congress to go pound sand? What does the WPA do then? Answer: NOTHING. There is no enforcement provision in the WPA.
Could congress cut funding? Yes, absolutely. But my point is that they could do that WITHOUT the WPA. That authorization is contained in Article 1 of the Constitution. So all the WPA might do is give Congress the justification to do what Congress can do WITHOUT justification if they want to.
Which is why I say it’s (a) Unconstitutional, (b) toothless and (c) irrelevant.
Minor point: a law being redundant or unnecessary doesn’t mean it’s unconstitutional. One can argue that the WPR merely specifies the legal procedures to be followed in order to use military force pending Congressional authorization. In addition to the power to declare war, Congress does have the power “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”.
As written, the current law implementing the WPR may be toothless. However, I’d hesitate to call it irrelevant. Willful violation may well be grounds for action under the last clause/last 2 clauses of Article I, Sections 2 and 3, respectively. If Congressional leadership were to have a spine, that is.
Hondo: It’s unconstitutional because it purports to tell the president HOW he may exercise his authority as CinC, a power that is explicitly the president’s in Article 2. The only way to do that and pass Constitutional muster is to amend the Constitution.
It’s irrelevant because it attempts to use law to regulate what is in practice a completely political decision, i.e. the decision to use military force.
Even if Congress (or some other actor) were to attempt to file a suit of some kind citing the WPA as its justification, that suit would never get to trial because the courts would recognize the political nature of the issue and would say it is not a matter for Courts to decide, it is a political matter for the elected branches.
As far as impeachment goes, that, too, is a political and not a legal question. There is no definition of “high crimes and misdemeanors” sufficient to cause an impeachment process to begin, so in reality, an “impeachable offense” is whatever the House think is an impeachable offense, no more and no less.
The most that can be said of the WPA is that it might, under exactly the right circumstances, act as a “tripwire” or a justification for Congress to use the powers they already have to rein in an out-of-control President, but I emphasize that those powers are inherent in the Constitution and do not depend on the WPA for their existence or for their use.
Excuse me, but the CINC’s authority does not extend to committing forces to war without Congressional authority. Further, Congress tells the Executive branch what it must and must not do in exercising it’s powers all the time. It’s called “enacting Federal legislation”. The Federal courts do likewise whenever they rule on the legality of a particular Executive branch regulatory action.
Article 1, Section 1 of the Constitution explicitly grants the authority to authorize war to Congress – not the President. And Article 1, Section 1 further gives Congress the power to enact “all laws necessary and proper” to exercise it’s power to authorize war.
The WPR is not only an expression of Congressional intent. It is also one of those “necessary and proper laws” Congress is empowered to enact concerning authorizing war – a power reserved to Congress by the Constitution. It actually grants the POTUS power he previously did not possess: specifically, it grants the POTUS the formal authority to commit US forces to combat pending Congressional authorization for purposes other than immediate self-defense. (Indeed, that was one criticism of the WPR while it was being debated.) It also imposes on the President certain reporting requirements to Congress. All of that is within Congress’ authority.
If Congress had a spine, they’d have slapped the POTUS hard on day 61 of his unauthorized Libyan exercise in creating safe havens for Islamic Extremism – and the matter would now be resolved. Had they done so, they might well have prevented much of the current mess with ISIS, in Syria, and with the near loss of Egypt to the Muslim Brotherhood.
Vietnam was an undeclared war. It cost thousands of lives and billions of dollars and resulted in nothing. I do not remember whether or not LBJ utilized any kind of WPA to bump it up, but I do think that he went over the heads of Congress to get what he wanted.
But Hondo is better at digging that up than I am.
Does the phrase “Gulf of Tonkin Resolution” ring a bell, by any chance? (smile)
Why, yes. Yes, it does.
http://www.mcvthf.org/ChronKey.htm
Shufly occurred while we were still officially “advising” South Vietnam. Even in 1963, US “advisory” troop levels in-country were barely 16,000 nationwide – 16,300 at end of year.
Those operations were technically advisory vice “combat”. I’m relatively certain that the JFK and LBJ administrations held that the routine authorization/appropriations process where Congress authorized and approved the DoD budget granted authority for those forces being in Vietnam because we were “not engaging in combat” and there was at the time no WPR requiring specific Congressional approval for such a role, even if it might involve sporadic hostilities.
The Gulf of Tonkin Resolution changed the situation radically with respect to what was legally permissible. It was passed by Congress in August 1964. It has been described as “the functional equivalent to a declaration of war”; it stated flatly that “the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.” It (the GoT Resolution) also had no fixed expiration date.
LBJ deliberately executed only minor retaliatory measures against North Vietnam until after the 1964 election. He started ramping up, using the GoT resolution as authority, in early/mid 1965 – after he’d been elected, and after having told the CJCS prior to being elected, “Just wait until after the election. Then you can have your war.”
By the end of 1965, US troop levels in Vietnam were north of 185,000. Two years after that, we had over 475,000 troops there. And we maintained that many people there (or more) until 1970.
distasteful tinge
That’s awful polite Jonn…I’m thinking more like rat bastard insubordinate mother fucker…is probably how I’d phrase, but I tend to be less diplomatic than a lot of folks…
I’m no fan of how this president is currently conducting his efforts to stem the ISIS murderers in the ME, piecemeal efforts as advisers to semi-useless local units has a distinctly unsavory deja vu aspect as well as being clearly ineffective.
Either kill the fuckers or don’t, but don’ fucking play around at it. See what needs to be done, make that happen or let it sort itself out but don’t waste lives in dribs and drabs for nothing, and the way the policy is carried out right now it seems the lives are being spent for nothing or next to nothing. We have men and women willing to make the ultimate sacrifice Mr. President, don’t waste that resource needlessly.
Most of us here are old enough to remember LBJ “sending messages of our resolve” and similar bullshit.
Our current president is a stubborn man with an unusual view of how the world works. He is either getting bad advice or he is ignoring good advice. if we don’t change our policies, this shit will continue.
What does Mr. Putin want the US to do? What about the Saudis? The Iranians? The Chinese? Mr. President, all of those people want the US to look bad and you are playing the part that they wrote for you. Like we all said about Nixon in the 70s, don’t be a dick.
‘Our current president is a stubborn man with an unusual view of how the world works.’
No. Our current resident is an ignorant, self-centered slacker who does not want to get ‘blamed’ for anything that goes wrong. Instead of making decisions, he waffles.
And everything since he took office has gone wrong. This mishandling of the Middle East affair is only the latest in a long line of slacker acts by him.
What PH2 said, exactly. I always thought LBJ often felt the need to ‘prove’ his manhood. He’s on tape stating VN was a no-win, regardless of his actions. IMHO, he chose the wrong course of action.
If Barack Obama was a teensger, he would be a skateboarder.
Teenager, Damn it!.
ah, yes, Johnson wanting us to “save face” – still remember the old anti-war button “I’d rather save my ass than Johnson’s face”.
Takes me back to the smell of tear gas on campus…
Whatever happens between now and November this year (technically, January 2017), the mess being left behind by bodaprez will still exist, for someone who succeeds him to clean up.
I’ll leave it to you to decide who would be better at cleaning it up before you go to vote.
Didn’t we do this same song and dance in 06 with Watada? He claimed that Iraq was illegal and that Bush was illegitimate?
Not really. If I recall correctly, Watada refused to deploy and used that as his “justification”. This is a formal court challenge to the conduct of the war.
It’s something that needs to be done; we’ve drifted far away from the Constitutional requirement for Congressional authorization for war recently. The guy is in fact apparently forward-deployed ISO operations in SWA, so it’s obvious to me he’s not using this as an excuse to stay home. However, I agree with Jonn – it’s simply not a serving officer’s place to file such a lawsuit, even if he does have a claim of legal standing to do so.
Bottom line: the man is doing something good – in a thoroughly inappropriate way. It’s IMO akin to running a scam and giving the proceeds to a reputable charity.
What you’re saying, Hondo, is that it would be more appropriate for me, or someone like me to, file that suit?
Yes, it does need to be done, but this is not how to do it.
While I think this will get quickly tossed, as Congress hasn’t objected to the use of the 9/11 and Iraq AUMF’s as authorization; the only individuals who could show damages and have standing to file suit would likely be a deployed service member.
Yes, it would be nice to have an updated AUMF for ISIS; but the administration and Congress can’t find a common solution. The Administration can’t articulate what powers it wants/needs that it doesn’t have now.
And the competitive promotions for his group just got that much easier.
He is not making major.
want to bet he already got passed over once?
His next OER should make for some entertaining reading…
Maybe he’s angling for a “Jack Reacher” vibe. Never will see O-4. He’ll get out, become a nomad, loner. Roaming the land, righting wrongs with nothing but an expired passport. Kicking bad-guy ass and bedding beautiful babes…..but then again purple monkeys could start flying out of my ass at any moment.
Jeezus… another SJW Intel Officer! Hope he takes a close look and frames his last FITREP, it will probably be the last one he gets that hasn’t had the chain of command wipe their collective asses with.
Memo for Captain Smith – the assclown in chief is out of office next January. Also, get a resume ready – your career as an officer ended when you filed this suit.
I’d like to have a long talk with the SNCO that works with this clown…
Take some whiskey with you.
It’s actually pretty common in the MI world for officers to be put in positions where they have no adult (i.e. NCO) supervision. 😉
Thanks Martinjmpr, I just sprayed coffee out my nose, all over my monitor.
Standing notwithstanding (well, I liked it, anyway) it is quite unseemly for a member of the military to sue his commander in chief, even if that commander is oBaMa. The best way to bring a matter such as this to the fore is through public demand for a clear and consistent foreign policy and a full explanation of why any member of the American military is presently in No Afr or the ME. Such pressure usually is brought to bear on Congress by individuals, groups. and, of course, the media. But all are asleep at the wheel and have been for years. I understand the captain’s frustration but all he’ll probably get for his trouble is vilification and the label of political partisan out to try to embarrass oBaMa. Yeah, well, the POS is incapable of being embarrassed and the captain will be dismissed as a rogue nutjob. Besides all of that, America doesn’t give a shit. Next item.
So is this what happens when Millennials get commissions?
I thought he was one his age puts him in the category to be one 🙂
https://youtu.be/hLpE1Pa8vvI
LIKE ^^^^^^
???????
SWEET!!!
So Just Saying But He Should Be SHOT !!!!!!
JACK ASS !!!!!!!
Oh, now, don’t take on so. He’s just drawing attention to something that we all know has been going on since January 20, 2009.
So his Boss is an incompetent clodpole and a slacker. So what? Who here hasn’t worked at one time or another for an incompetent asshole?
Find another job and write nasty books exposing that idiocy, fella. It would be far more useful than making a grandstanding play for attention like this. Right now, I think you are well-burnt toast.
Somebody wants to be a Sunday Morning pundit when he grows up.
Yep, I’m assuming he’s gunning for a position as Fox New’s latest “military expert.”
I see a Captain who will never be a Major.
“Hmmm…what can I do to torpedo my military career?”
If that was his objective this may be a relatively smart way to do it. Rather than commit some garden-variety crime, he does this, which will gain him some notoriety, and the admiration of at least a certain segment of society. Could be a career enhancer, albeit outside of the military.
Definitely out of his lane! 😯 That’s an understatement! 🙄 He was swimming in lane one, but now he’s law crawling on the pool deck adjacent to lane eight, with complete pandemonium of frustrated, angry swimmers in the other lanes frustrated with an interrupted workout!
He either didn’t check with his senior NCO to see if this was a good idea or not, or certain senior NCOs accidentally left the door to the crazy barn open. 😆
His argument is also weak.
low crawling, not law crawling…
Particularly since the POTUS renewed the post-9/11 declaration of a state of emergency due to certain terrorist attacks during September of last year, extending it through mid-September of this year.
I don’t recall that particular declaration specifying any particular geographical area in which it applies.
While I don’t agree with his methods, at least he is speaking up while it is timely, instead of these other self-serving assholes who lately have been coming out with “well, I disagreed while I was in office but didn’t say anything till now”. The young captain at least is speaking up while he has some skin in the game.
I agree with your point, but not how he went about it. A lawsuit is about money — period. And nothing will come of it, except the early demise of his military career. If you’re going to commit professional seppuku, then you need to find a way to make it mean something, not be fodder for a SNL skit.
Messrs. Remes & Ackerman have found a witless fool in Nathan Smith. If there is an uptick in the story, Cpt. Smith’s dabbling in Intelligence has already ended. Chain of command means nothing to a rougue once they have taken off on a frolic of their own. Maybe he’ll have better luck in a new career endeavor… there’s always room for fools in climate psycience or academia.
Well Captain Oblivious, time for you to find a new career.
I don’t agree with Obamas handling of any of this, but…
I’d bet his fitness reports were less than AJSquaredaway, that he bitched out loud and got chewed out for it, and that he saw things that tell him it’s time to bail out, anyway.
Yep, he’s probably trying to set himself up at some ultra-right-wing “think tank” as a martyr: “He got cashiered by Obama for daring to tell the TRUTH!!!!!1!!!!!”
He can deep six any thought of being a career soldier. Anyway, I think it’s obvious being a career soldier is not what he has in mind. This guy as politician written all over him.
“Who is number 1?”
(Hat tip to anyone who gets the cultural reference. [smile])
“I am not a number! I am a man!” 😉
1 is the loneliest number
I assume you were born on Sept 14th. What a day for selection.
THX-1138 must work harder.
His career is now on a meteoric arc to oblivion. If he is lucky only his clearance will be pulled. If not, he may find his manhood yanked off and fed to him. Figuratively if not literally.
Interesting when looking at his photo.
It looks as if he was awarded the BSM and CAB, so am wondering if he was deployed before in another Operation.
Don’t keep up anymore with Army Promotion Boards, so am curious when he will be eligible for Major, i.e. if he stays in (document state he was commissioned in 2010).
Need to reread the documents as well; am curious if he is RA, NG or USAR. Perhaps it does not matter and is petty on my part in wondering.
Most surprising is wondering if his Chain of Command knew this was coming. Could be wrong, but again, curiousity makes me wonder if CENTCOM is in his CoC.
You can’t get a CAB in Kuwait, and his background info says he deployed to Afghanistan.
It also says he was commissioned in 2010, so he would be looking at Major in 2020 or so.
Meant to add: III Corps (Ft Hood) is the core of the CJTF, so most likely this guy is AC in Corps G-2 or one of the supporting units.
Thank you the information, Reddevil. Need to pay more attention when reading articles and documents.
This is going be more interesting as the days go by.
Support makes sense, that is Intel branch insignia. Perhaps Lars knows him…
Perhaps he’s angling for SECDEF in case Hildebeast gets elected…
Hate to burst the man’s bubble — well, not really — but U.S. courts have said over and over and over and over again that they WILL NOT decide the legality of any U.S. war effort.
In 1868 we had the lawsuit Perrin v. United States…a French guy whose warehouse had been bombarded on the Mosquito Coast sued, saying the war was illegal and asking for compensation. The court said…we’re not deciding that.
In 1995 or so we had a court-martial, U.S. v. Huet-Vaughn, where a reservist refused to mobilize on the theory that the war was illegal. The court said, we are not going to decide the legality of the war effort.
There’ve been many others, including a bunch clustered around Vietnam. I remember one where a guy was on trial for sabotaging (or trying to sabotage) aircraft, and his defense was that the aircraft would’ve been used to commit “war crimes” since the war effort was illegal…the answer was the same. The answer is ALWAYS the same. The courts will leave it up to the political branches and international diplomacy.
Expect a dismissal.
Of both the suit and the good Capt.