Congress, Constitutional Law, International, Justice, Lawyering, Media, Military, Politics, Society, Supreme Court

Members of Congress Challenge Libyan War in Federal Court

Today, I have the honor of representing ten members of the United States House of Representatives in challenging the constitutional basis for the Libyan War — and the underlying claims made by President Obama. These members include Democrats and Republicans from across the political spectrum. They share a belief that Article I, Section 8 of the Constitution expressly requires the authorization of Congress before a president can commit the nation to war. The lawsuit will be heard in the United States District Court for the District of Columbia. We filed this afternoon and held a press conference with the members in front of the courthouse. A copy of the complaint (which will be heard by Judge Reggie Walton) is below.


This challenge goes beyond Libya and challenges the claim by the Administration that the President has the inherent authority to order combat operations without the approval or declaration of Congress. The Plaintiffs in this action include the second most longest standing member of Congress, John Conyers, as well as leading members from both parties. The members are Representatives Roscoe Bartlett (R., Md); Dan Burton (R., Ind.); Mike Capuano (D., Mass.); Howard Coble (R., N.C.); John Conyers (D., Mich.); John J. Duncan (R., Tenn.); Tim Johnson (R., Ill.); Walter Jones (R., N.C.); Dennis Kucinich (D., Ohio); and Ron Paul (R., Tx).

This is an action for injunctive and declaratory relief. In addition to challenging the circumvention of express constitutional language, it will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review. These members will ask the federal district court for review of the constitutional question and for recognition that the Constitution must allow for judicial review of claims of undeclared wars under Article I.

I am being assisted in this case by a team including Jodie Cheng, David Fox, Kyle Noonan, Eric Sidler, and Geoff Turley (no relation to Professor Turley).

We are deeply honored to represent these courageous members of Congress in their defense of important constitutional limitations on executive power. While there are many uncertain questions under the Constitution, this is not one of them. The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I. The last few years have vividly demonstrated the dangers that the Framers sought to avoid in dividing the war powers between the Executive and Legislative branches. Despite their sharp ideological differences, these members are bond by deep faith in the Constitution and a sense of responsibility in defending its provisions. We shall their concerns and are eager to advance their claims in the Judicial Branch in this lawsuit.

As in past high-profile cases, I will have to be circumspect in my public comments once the case is filed.

Here is the filed complaint: Libyan Complaint;pdf

Jonathan Turley

155 thoughts on “Members of Congress Challenge Libyan War in Federal Court”

  2. Off Topic:

    U.S. Pressing Its Crackdown Against Leaks
    By SCOTT SHANE
    New York Times
    Published: June 17, 2011
    http://www.nytimes.com/2011/06/18/us/politics/18leak.html?_r=1

    Excerpt:
    WASHINGTON — Stephen J. Kim, an arms expert who immigrated from South Korea as a child, spent a decade briefing top government officials on the dangers posed by North Korea. Then last August he was charged with violating the Espionage Act — not by aiding some foreign adversary, but by revealing classified information to a Fox News reporter.

    Mr. Kim’s case is next in line in the Obama administration’s unprecedented crackdown on leaks, after the crumbling last week of the case against a former National Security Agency official, Thomas A. Drake. Accused of giving secrets to The Baltimore Sun, Mr. Drake pleaded guilty to a minor charge and will serve no prison time and pay no fine.

    The Justice Department shows no sign of rethinking its campaign to punish unauthorized disclosures to the news media, with five criminal cases so far under President Obama, compared with three under all previous presidents combined. This week, a grand jury in Virginia heard testimony in a continuing investigation of WikiLeaks, the antisecrecy group, a rare effort to prosecute those who publish secrets, rather than those who leak them.

    The string of cases reflects a broad belief across two administrations and in both parties in Congress that leaks have gotten out of hand, endangering intelligence agents and exposing American spying methods.

    But Steven Aftergood, director of the project on government secrecy at the Federation of American Scientists, said the fizzling of the Drake prosecution “ought to be a signal to the government to rethink its approach to these cases.” He said the government had many options for punishing leaks: stripping an official’s security clearance, firing him or pursuing a misdemeanor charge. Instead, it “has been leaping to the most extreme response, felony charges,” he said.

    In particular, critics of the leak prosecutions question the appropriateness of using the Espionage Act, a World War I-era statute first applied to leaks in the Pentagon Papers case in 1971. They say it is misleading and unfair to lump the likes of Mr. Drake and Mr. Kim with traitors like Aldrich Ames or Robert P. Hanssen, who sold secrets to the Soviet Union.

  3. Obama rejects top lawyers’ legal views on Libya
    BY GLENN GREENWALD
    http://www.salon.com/news/opinion/glenn_greenwald/2011/06/18/libya/index.html

    Excerpt:
    In 2007, former Bush Deputy Attorney General James Comey testified to the Senate Judiciary Committee about an amazing event. Bush’s then-Attorney General, Alberto Gonzales, had blocked Comey from testifying for two years — once Democrats took over Congress, that obstruction was no longer possible — and it quickly became apparent why Gonzales was so desperate to suppress these events.

    Comey explained that, in 2004, shortly after he became Deputy AG, he reviewed the NSA eavesdropping program Bush had ordered back in 2001 and concluded it was illegal. Other top administration lawyers — including Attorney General John Ashcroft and OLC Chief Jack Goldsmith — agreed with Comey, and told the White House they would no longer certify the program’s legality. It was then that Bush dispatched Gonzales and Andy Card to Ashcroft’s hospital room to try to extract an approval from the very sick Attorney General, but, from his sickbed, Ashcroft refused to overrule Comey.

    Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

    That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

    There’s another significant and telling parallel between Obama’s illegal war and the Bush eavesdropping scandal. One of the questions frequently asked about the NSA scandal was why Bush and Cheney decided to eavesdrop in violation of the law rather than having Congress approve their program; in the wake of 9/11, both parties in Congress were as subservient as could be, and would have offered zero resistance to requests by the administration for increased eavesdropping powers (the same question was asked of Bush’s refusal to seek Congressional approval for the detention and military commissions regime at Guantanamo). The answer to that question ultimately became clear: they did not want to seek Congressional approval, even though they easily could have obtained it, because they wanted to establish the “principle” that the President is omnipotent in these areas and needs nobody’s permission (neither from Congress nor the courts) to do what the President wants.

    The exact same question emerges here. From the start, the GOP leadership was vocally supportive of the war in Libya. In fact, John McCain was demanding the war begin before Obama even committed to it, while Lindsey Graham was urging the war be waged more aggressively. On the eve of the war, GOP House Speaker John Boehner — while calling on Obama to be clear about the mission — issued a statement declaring: “The United States has a moral obligation to stand with those who seek freedom from oppression and self-government for their people. It’s unacceptable and outrageous for Qadhafi to attack his own people, and the violence must stop.”

    Indeed, Obama’s most valuable allies on Libya from the start (as is true for his war in Afghanistan and other Terrorism policies) have been Republican leaders. As The Washington Post reported in early June, Boehner — acting as an “unlikely ally” of Obama — introduced a meaningless resolution as a means of preventing passage of a more meaningful anti-Libya resolution: namely, Rep. Kucinich’s bill to compel withdrawal within 15 days. Moreover, most of the GOP House leadership just this week voted (along with Democratic leaders) against Brad Sherman’s amendment to cut off funds for Libya if Obama refuses to comply with the WPR. Right-wing support for Obama’s Libya policy continues to be strong, as yesterday Bill Kristol and other assorted neocons issued a letter urging steadfast support for the war.

  5. Elaine, I posted that last night on the thread about Boehner and Libya.

  6. 2 Top Lawyers Lost to Obama in Libya War Policy Debate
    By CHARLIE SAVAGE
    Published: June 17, 2011
    http://www.nytimes.com/2011/06/18/world/africa/18powers.html?_r=3&hp=&pagewanted=all

    Excerpt:
    WASHINGTON — President Obama rejected the views of top lawyers at the Pentagon and the Justice Department when he decided that he had the legal authority to continue American military participation in the air war in Libya without Congressional authorization, according to officials familiar with internal administration deliberations.

    Jeh C. Johnson, the Pentagon general counsel, and Caroline D. Krass, the acting head of the Justice Department’s Office of Legal Counsel, had told the White House that they believed that the United States military’s activities in the NATO-led air war amounted to “hostilities.” Under the War Powers Resolution, that would have required Mr. Obama to terminate or scale back the mission after May 20.

    But Mr. Obama decided instead to adopt the legal analysis of several other senior members of his legal team — including the White House counsel, Robert Bauer, and the State Department legal adviser, Harold H. Koh — who argued that the United States military’s activities fell short of “hostilities.” Under that view, Mr. Obama needed no permission from Congress to continue the mission unchanged.

    Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch.

  9. Obama’s actions on this are worrying from another perspective. Had he asked Congress to approve his war they would likely have done so. I haven’t seen Congress (as a group) standing up for civil liberties, stopping torture, renditions, murder etc. so why would they suddenly say “no” on this one?

    The UK just extended their own authorization to “help” Libya until the end of Sept. What if the govt. would also like to engage in full scale kinetic action “helping” ? Maybe the administration wants to complete the precedent that they really don’t have to bother with Congress at all? I don’t know, but there is something very strange and very scary going on here. And yes Buddha, I do believe that stain is oil!

  11. I find it highly unlikely that this will ever reach, or be decided on, by the Supreme Court. First, it would be a serious departure from previous case history to find that these Congresspeople have standing. Like TSO, I have read some of the previous challenges by members of the legislature against executive action, and I fail to see how this suit has distinguished itself from thsoe.

    Second, due to the timeline involved, I think there is a real possibility that even if the Court overturned its previous holdings standing for these kinds of actions, the case might already be moot. In which case there would still be no decision.

    Although I would be very intereseted to see how the Court came out on the tug-of-war between the legislature’s powers to declare war and raise armies and the executive’s powers as commander-in-chief and a foreign affiars policy-maker…I don’t think that is going to happen. So I will watch with interest, Professor Turley, but I fear that this might be a waste of time, effort, and (already limited) government money.

  12. Swarthmore mom, Blouise,

    I don’t trust them either but, in this case maybe they’re doing the right thing, for the wrong reasons… I trust/hope that they’ll shoot themselves in the collective foot, at some point…

  15. SwM,

    Found a “business center” … You are correct in your assessments … all of them 🙂

  17. The republicans involved have all signed on to the Tea Party. When someone designates that he or she is a tea party member, I pay attention.

  18. “IMO, the Congress should cut off funding for all the imperial wars. For example, we are secretly cluster bombing the people of Yemen.

    It does not matter what party he or she is from. It is dangerous to support a dictator. Republicans were wrong not to go after Bush for his power grab and Democrats are wrong not to go after Obama for his. This nation is at stake. Justice is a stake. Lives are at stake.” -Jill

    I agree, and it bears restating

    (Happy belated birthday, Woosty.)

  19. Jill,

    Now that’s funny. :mrgreen:

    Maybe we should check Libya’s dress for suspicious stains?

    Perhaps . . . oil stains?

  20. Obama’s response to the law suit: “I did not have war with that country.”

    (courtesy of someone on facebook relayed by a poster on Common
    Dreams, phoenix 20)

Comments are closed.