SOMETIMES I'M PROUD TO BE A MEMBER OF THE FIRST CIRCUIT BAR

Doe v. Bush, No. 03-1266 (1st Cir. Mar. 13, 2003).

Plaintiffs are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives. 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.

On the one hand, good for the First Circuit. On the other hand, why aren't the plaintiffs busy figuring out how they're going to pay the Rule 11 sanctions imposed against them for bringing a frivolous action?

The best part of the opinion is the Court's whole-hearted rejection of the argument - not made by the plaintiffs - that the War Powers clause requires a particular form of words for a "declaration of war."

The plaintiffs appropriately disavow the formalistic notion that Congress only authorizes military deployments if it states, "We declare war." This has never been the practice and it was not the understanding of the founders. See J.H. Ely, War and Responsibility 25-26 (1993). Congressional authorization for military action has often been found in the passage of resolutions that lacked these "magic words," or in continued enactments of appropriations or extensions of the draft which were aimed at waging a particular war. See, e.g., Laird, 451 F.2d at 34 ("[I]n a situation of prolonged but undeclared hostilities, where the executive continues to act . . . with steady Congressional support, the Constitution has not been breached."); Orlando, 443 F.2d at 1042-43 ("[T]he test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question."); see also Ely, supra, at 12-46 (arguing that Congress gave constitutionally sufficient authorization for ground war in Vietnam and Cambodia).

Maybe now we'll hear less of this particular argument.

Finally, the history of our dealings with Iraq for the last twelve years is well worth reading:

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.

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/687 (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.

A rush to war, indeed.

Posted by David Cohen at March 13, 2003 11:04 PM