Last night, Captain Nathan Michael Smith filed his memorandum in opposition to the government’s motion to dismiss his suit challenging the legality of Operation Inherent Resolve (OIR) against ISIL in Iraq and Syria.  I’ve previously published two extensive posts–here and here–discussing the three principal issues in the case:  (i) whether Smith has standing to sue; (ii) whether the dispute is a nonjusticiable “political question”; and (iii) the merits of whether Congress has authorized Operation Inherent Resolve.  I will not repeat here the detailed analysis I offered in those posts.  Instead, in this post I’ll offer a few quick reactions to the PQD and merits issues.  In a follow-up post, I will address Captain Smith’s standing argument, explaining why I continue to think he lacks Article III standing, notwithstanding Little v. Barreme, on which he significantly relies.

Political Question

In each of my previous posts I have explained at length why the government is wrong to argue that the case turns on a nonjusticiable political question.  Instead, the merits of the case depend upon a question of ordinary statutory interpretation of the 2001 and 2002 AUMFs and some recent appropriations statutes–the sort of thing that federal courts do all the time.  Captain Smith’s brief argues the same–and he’s right.  I don’t have much to add to what I wrote earlier.

The Merits

Most of Captain Smith’s brief is devoted to a very robust account of how Congress has not authorized Operation Inherent Resolve in any of the three statutory sources the government identifies:  the 2001 AUMF, the 2002 AUMF, and more recent appropriations statutes.  As I’ve written before, I think that although it is clear that Congress has funded the Operation, and equally clear that (unlike in Vietnam, Kosovo, Syria, Libya, etc.), virtually no members of Congress oppose the Operation, the question of whether Congress has authorized Operation Inherent Resolve is difficult and close.  And if Congress has not authorized the Operation, I agree with Smith–and the government does not disagree–that section 5(b) of the War Powers Resolution would have required the President long ago to withdraw troops from hostilities in Iraq and Syria.

I don’t have much to add to what I’ve offered earlier on the merits of the three sources of alleged authorization, other than to say that Captain Smith raises a good number of the reasons why the government’s case for authorization is so difficult, and offers food for thought if Judge Koller-Kotelly were to reach the merits.  At least one thing in each of Smith’s three arguments, however, is mistaken or fails adequately to engage with the government’s affirmative case.  In the order they are addressed in his brief:

a.  The Appropriations Statutes.

Private Smith argues at length that the recent appropriations statutes do not provide the sort of specific statutory authorization for Operation Inherent Resolve that sections 5(b) and 8(a)(1) of the WPR require.  He is surely correct about that.  But that’s undisputed.  As to the appropriation statutes, the government’s “central argument” is not, as Captain Smith assumes (p.29) “that the ‘specific authorization’ required by Section 5(b)(3) [of the WPR] can be established by the Congressional of appropriations bills funding the campaign against ISIS.”  Instead, as I explained in my previous post, the government’s argument as to the appropriation statutes–as opposed to the two AUMFs–is that they supersede, or impliedly repeal, the WPR condition of specific authorization, and that they independently authorize the Operation–not that they satisfy the WPR condition.

This distinction is clearly explained in OLC’s opinion about Congress’s authorization of the 1999 operation in Kosovo (p.343):  “If . . . Congress, in enacting an appropriation statute, demonstrates a clear intent to authorize continuing hostilities, then it would be appropriate to conclude that the appropriation statute does authorize those hostilities, even though the statute does not specifically refer back to the WPR.  Under these circumstances, the appropriation statute would supersede or work an implied partial repeal of section 8(a)(1).  In other words, section 8(a)(1) establishes procedural requirements that, under the statute, Congress must follow to authorize hostilities; nonetheless, a subsequent Congress remains free to choose in a particular instance to enact legislation that clearly authorizes hostilities and, in so doing, it can decide not to follow the WPR’s procedures.”  See also id. at 364 (“[I]f the text and legislative history of the appropriation statute make clear that it was Congress’s clear intent to authorize continued operations, that intent is controlling, even if the statute does not reference the WPR.  Such an appropriation statute is an implied partial repeal of section 8(a)(1) (or a supersession of section 8(a)(1)).”).

Of course, implied repeals are generally disfavored, and thus must be demonstrated by clear legislative intent.  Moreover, as that OLC Kosovo opinion explains, the WPR itself establishes a very strong default rule against which subsequent Congresses act; as I wrote previously, it creates a “background principle” that informs how one should construe appropriation enactments of subsequent Congresses that do not specifically reference the WPR, so that if there is ambiguity as to whether the statute authorizes the hostilities, it would be proper “for a judicial or executive branch actor to conclude that, because the subsequent Congress was aware of the background principle established by section 8(a)(1), its failure to refer specifically back to the WPR evidences an intent not to authorize continuing hostilities” (OLC Kosovo Op. at 343).  A supersession of the WPR can only be found if there is a clear intent to that effect in the appropriations statute.

As I explained in my earlier post, however, the language of the recent appropriations statutes in question poses serious hurdles to finding such a clear intent to authorize here (as oppose to a clear intent to fund the Operation, which the statutes obviously reflect).  Pages 30-32 of Captain Smith’s brief discuss the statutory provisions that would make it very difficult for the government to prevail on its appropriations-supersede-the-WPR theory.  Therefore, although Smith asks the wrong question, he does offer much of the best arguments about why the government’s actual argument is tenuous.

b.  The 2002 AUMF.

Captain Smith emphasizes that “the threat posed by Saddam Hussein’s regime in Iraq was the primary focus of the 2002 AUMF.”  He’s surely right about that–and the government agrees.  The government argues, however, that the 2002 AUMF also implicitly authorized the President to use the armed forces to deal with the fallout of the war against Hussein’s regime and, in particular, to to help the new Iraqi state fend off the terrorist threat posed by al Qaeda in Iraq (AQI) that was an outgrowth of that war–a threat that (according to the government) continues in the form of ISIL, even though there was a period, between 2011 and 2014, when that threat was not active.

In order to fully contend with the government’s argument, Captain Smith should have explained either why the 2002 AUMF did not authorize the use of force against AQI between 2003 and 2011 (a tall order), or why the period when AQI/ISIL was not in conflict with the United States, from 2011 to 2013, effected an end to the 2002 AUMF authority, requiring a new authorization when ISIL once again began to attack Iraq in 2014.  I expected Smith to offer the latter argument; his brief, however, only (at most) hints at it.

c.  The 2001 AUMF.

In response to the government’s argument that the 2001 AUMF provides the requisite authorization, Captain Smith oddly devotes most of his efforts to showing that ISIL is not an “associated” force of al Qaeda and, in any event, that Congress has not authorized the President to use force against such “associated forces.”

The government’s argument is not, however, that ISIL is an “associated force” of al Qaeda.  Indeed, it would be difficult for the government to make that argument, in light of its own, properly circumscribed definition of “associated forces,” which requires that the group in question must be both “(1) an organized, armed group that has entered the fight alongside al-Qa’ida, and (2) a co-belligerent with al-Qa’ida in hostilities against the United States or its coalition partners.”  ISIL plainly does not meet this test.

Instead, as Smith himself acknowledges at one point in his brief (p.40), the government argues not that ISIL is an “associated force” of al Qaeda, but that ISIL is a component of al Qaeda that split off from the original organization and that continues to engage in armed conflict against the United States and its coalition partners.  The government contends that the 2001 AUMF continues to apply to such offshoot organizations, at least if they continue to engage in the armed conflict that the AUMF authorized the President to fight.  For reasons that I and many of my co-bloggers, and others, have raised, this is a creative argument, open to several different objections.  Captain Smith, however, does not really engage with it, because his brief is so focused on showing what no one denies–i.e., that ISIL is not an “associated force” of al Qaeda.

In my next post . . . Article III standing.