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Smith v. Obama

United States District Court, District of Columbia

November 21, 2016

BARACK H. OBAMA, Defendant



         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 officer. Id. ¶ 1. He worked at the headquarters of the Commander of the Combined Joint Task Force-Operation Inherent Resolve, who oversees the United States counter-ISIL campaign in Iraq and Syria. Id.

         By Plaintiff's own account, he supported the United States taking military action against ISIL. Plaintiff states that ISIL is “an army of butchers” and that “[t]heir savagery is sickening.” Decl. of Nathan Michael Smith, ECF No. 1-3 (“Pl.'s Decl.”) ¶ 4. He states that “[w]hen President Obama ordered airstrikes in Iraq in August 2014, and in Syria in September 2014, I was ready for action. In my opinion, the operation is justified both militarily and morally. This is what I signed up to be a part of when I joined the military.” Id. ¶ 5.

         Although he “cheer[ed] every airstrike and every setback for” ISIL, he also heard news accounts that led him to believe that “people at home were torn about whether President Obama should be carrying out this war without proper authorization.” Id. ¶ 6. He stated that he had taken an oath to “preserve, protect, and defend the Constitution of the United States, ” and was unsure how he could honor it when fighting a war, “even a good war, ” that the Constitution did not allow or Congress had not approved. Id. ¶ 7. Plaintiff therefore brought this lawsuit “[t]o honor [his] oath.” Id.

         As summarized by Plaintiff, his lawsuit “seeks a declaration that President Obama's war against ISIS is illegal because Congress has not authorized it.” Compl. at 1. Specifically, Plaintiff alleges that under the War Powers Resolution, sixty days after President Obama introduced U.S. armed forces into hostilities with ISIL in Iraq and Syria, he was required to obtain from Congress either a declaration of war or “a specific statutory authorization” for this use of force. Id. ¶¶ 24-25. Plaintiff alleges that President Obama never sought such approval, and that neither the 2001 AUMF nor the 2002 AUMF constituted prior authorization. Id. ¶¶ 25, 31-37. Plaintiff also claims that the Take Care Clause of the Constitution required President Obama to publish, within the sixty-day period specified by the War Powers Resolution, a “sustained legal justification to enable [Plaintiff] to determine whether his military actions as an officer [were] consistent with his oath.” Id. ¶ 28. As relief, Plaintiff requests that the Court declare that Operation Inherent Resolve violates the War Powers Resolution and the Take Care Clause and that, if Congress does not declare war or give the President specific authorization within the next sixty days, all United States armed forces must disengage from military action against ISIL. Id. at 13.


         When a motion to dismiss a complaint under Rule 12(b)(1) is filed, a federal court is required to ensure that it has “the ‘statutory or constitutional power to adjudicate [the] case[.]'” Morrow v. United States, 723 F.Supp.2d 71, 77 (D.D.C. 2010) (emphasis omitted) (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89 (1998)). “Federal courts are courts of limited jurisdiction” and can adjudicate only those cases or controversies entrusted to them by the Constitution or an Act of Congress. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “In an attempt to give meaning to Article III's case-or-controversy requirement, the courts have developed a series of principles termed ‘justiciability doctrines, ' among which are standing . . . and the political question doctrine.” Nat'l Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). The Court begins with the presumption that it does not have subject matter jurisdiction over a case, id., and Plaintiff bears the burden of establishing otherwise, Moms Against Mercury v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007).

         In determining whether there is jurisdiction, the Court may “consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (citations omitted). “Although a court must accept as true all factual allegations contained in the complaint when reviewing a motion to dismiss pursuant to Rule 12(b)(1), ” the factual allegations in the complaint “will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Wright v. Foreign Serv. Grievance Bd., 503 F.Supp.2d 163, 170 (D.D.C. 2007) (citations omitted).


         Defendant raises a number of jurisdictional grounds for dismissing Plaintiff's Complaint, but this Court need only address two: (A) Plaintiff does not have standing because the specific legal injury about which he complains is not sufficiently concrete or particularized, and (B) Plaintiff's claims raise non-justiciable political questions.

         A. Standing

         The Court finds it appropriate to first take up the issue of whether Plaintiff has standing to bring this suit. See Am. Jewish Cong. v. Vance, 575 F.2d 939, 943 (D.C. Cir. 1978) (“[W]e believe that when both standing and political question issues are before the court and neither has been resolved definitively in a context readily applicable to the case presented, the court should determine the question of standing first.”). On the specific facts of this case, and in particular due to the narrow and unique legal injury that Plaintiff asserts, the Court finds that Plaintiff lacks standing.

         “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, __ U.S. __, 136 S.Ct. 1540, 1547 (2016), as revised (May 24, 2016). To establish standing, Plaintiff bears the burden of demonstrating that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)). At the pleading stage, this requires Plaintiff to “‘clearly . . . allege facts demonstrating' each element.” Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). The Court notes that the standing inquiry is “especially rigorous when reaching the merits of the dispute would force [the Court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines v. Byrd, 521 U.S. 811, 819-20 (1997).

         The dispute in this case centers around the “‘[f]irst and foremost'” element of standing: injury in fact. Spokeo, 136 S.Ct. at 1547 (quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103 (1998)). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest' that is ‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be ‘particularized, ' it ‘must affect the plaintiff in a personal and individual way.'” Id. (quoting Lujan, 504 U.S. at 560 n.1). For an injury to be “concrete, ” it “must be ‘de facto'; that is, it must actually exist.” Id. (quoting Black's Law Dictionary 479 (9th ed. 2009)). “Concrete” is not “necessarily synonymous with ...

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