Peace Group Sues Bush Administration, Charging Iraq War Is Unconstitutional
The suit, New Jersey Peace Action et al. v. Bush, represented by the Constitutional Law Clinic at Rutgers University Law School-Newark, alleges that the war violates article I, section 8 of the U.S. Constitution, which assigns to Congress the authority to declare war.
Clinic director Frank Askin said the framers at the 1787 constitutional convention denied war-making powers to the president except in response to sudden attacks when Congress might not have time to react quickly.
"The founders were very clear that only Congress could make that awesome decision," he said in a statement. "They [members of Congress] were not permitted to delegate that power to the president and thus be able later to disclaim responsibility for a decision gone bad."
The lead plaintiff in the suit, New Jersey Peace Action, is a nonprofit advocacy group that says it promotes peaceful alternatives to war. Other plaintiffs are Paula Rogovin of Teaneck and Anna Berlinrut of Maplewood, N.J., each of whom has a son in military service.
The plaintiffs seek a declaration that the president's unilateral decision to launch a full-scale invasion without congressional approval is "capable of repetition." Askin pointed to suggestions that the Bush administration is considering some type of military action against Iran because of allegations that country is attempting to build nuclear weapons.
"[B]ecause the Bush administration is thinking to wage war -- against Iran -- without a Congressional Declaration of War, it is essential that the judicial branch act expeditiously," the suit says. "To avoid the constant repetition of the lawless exercise of the awesome war-making power and restore the proper functioning of our constitutional system, it is necessary that the judicial branch definitively state what the Founders intended when they enacted Art. I, Sec. 8."
Reporters' calls and e-mails to the White House press office seeking comment on the suit were not returned by press time.
The Bush administration has argued that Congress authorized the president to act when it overwhelmingly passed an authorization to use military force in October 2002, five months before the invasion by coalition forces began.
The suit charges the authorization to use force was meant to include only military action to protect national security interests and to enforce United Nations Security Council resolutions and was not a formal declaration of war.
"There never has been a formal Declaration of War against Iraq,"the suit says.
Conceding federal courts have been loath to rule against an administration's use of military force, the suit goes through a lengthy analysis of the framers' writings and several early court decisions to bolster its claim that the current war is illegal.
Askin cited an 1800 U.S. Supreme Court ruling, Bas v. Tingy, 4 U.S. 37, which drew a distinction between the president's authority to conduct an "imperfect" war -- one meant to respond to an attack -- and to conduct a "perfect" war: an invasion of another country that can only be declared by Congress.
He also points to writings by Thomas Paine and Alexander Hamilton.
Paine, in "Common Sense," wrote of the need to limit the power of the executive to conduct wars of personal ambition. Hamilton, in "The Federalist," argued for a strong executive, but also said the powers should not be unchecked.
In "Federalist No. 69," Hamilton argued that the president's power would be "much inferior" to that of a king, while in "Federalist No. 26" he said Congress should have the responsibility of declaring war by a formal vote, so as to require members to explain their votes to their constituents, Askin wrote.
"The Framers deliberately chose to locate the war-initiating power in the most representative branch of government," he said. "They recognized that there is always much at stake in war ... and they wanted to make the process through which the nation could become immersed in war difficult and cumbersome."
If Congress had meant to declare war, it would have been as specific as it was in 1941 when it announced that war against Japan was "formally declared," the suit says. Askin also noted Congress' decision to allow President John Adams to pursue a limited war against the French by stating clearly that his authority to do so would expire at the end of the next congressional session.
Askin said that he and six law students at the clinic had researched the issues for the entire academic year in preparation for filing the suit.
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