More on Captain Smith’s “following orders” theory of standing (and Little v. Barreme)

As I explain in my previous post, Captain Smith is right that his suit is not barred by the political question doctrine, and he also raises very difficult and important arguments on the merits.  Even so, I continue to think that Judge Koller-Kotelly will likely dismiss Captain Smith’s case because he lacks Article III standing to challenge whether the President has complied with the War Powers Resolution by failing to withdraw troops from Operation Inhernet Resolvee in Syria and Iraq.  And Captain Smith lacks standing, as I’ve previously explained, because a presidential violation of the statute would not harm him in any distinct sense (i.e., in any way other than the fact that our elected President is not complying with the law, a “generalized grievance” about officials’ law-compliance that affects all of us equally and that therefore does not support standing).

Importantly, Smith’s theory of standing is not that he is more likely to be injured or killed by virtue of the President’s decision to deploy troops into hostilities in Iraq and Syria.  (If that were his theory, it would raise a more difficult Article III question; during the Vietnam War, some decisions of the U.S. Court of Appeals for the Second Circuit suggested that that would be sufficient to establish standing.)  Rather, Captain Smith insists that he is differently situated from the rest of us because he might be ordered to perform functions in support of Operation Inherent Resolve.  Smith was stationed in Kuwait when he filed his suit, but he is currently on duty in Texas.  Nevertheless, there remains a chance, he claims in his newly filed brief, that he might once again be ordered to provide intelligence services in support of the Operation in Iraq and Syria.  And, if he is so ordered, and if he is correct that the War Powers Resolution required the President to effectively end Operation Inherent Resolve some months ago, by withdrawing troops from Iraq and Syria, Captain Smith insists that that will put him to an impossible choice: between obeying orders and complying with the law.  He further claims that the Supreme Court has already decided, in the landmark case of Little v. Barreme, that when faced with such conflicting obligations, the military officer must follow the law, not his orders.  That’s a misreading of Little, however.

In Little, the Court held that a naval captain, Little, was liable in trespass (a common law tort) to the owner of a Danish ship he had captured on its way to France.  Little’s defense to suit was that he captured the ship on orders from the President.  Chief Justice Marshall explained, however, that Congress had implicitly prohibited seizures of such ships when heading to France, and thus had prohibited President Adams from ordering such captures.  At that time, reliance on a superior officer’s order, when that order was not clearly impermissible and was otherwise reasonable, was not a defense to civil liability if the order turned out to be unlawful.  Therefore, Marshall concluded that Captain Little could not rely upon a “superior’s orders” defense, and he was personally liable for the damages of what Marshall called his “plain trespass.”

The idea that an officer could be liable for following an order that was not obviously unlawful (indeed, the merits in Little was a close call, because the statutory restriction was implicit, not express) is one that surprised Marshall himself, in light of the “obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system”*; and it is no longer the law today.**

Possible legal liability for Captain Smith, however, is beside the point here, not only because Smith does not allege that he might be criminally or civilly liable for following orders–of course he wouldn’t be–but for the more fundamental reason that the analogy to Little depends on the mistaken idea that Smith would act unlawfully if the President is violating the WPR.

Smith’s argument assumes that if his reading of the relevant statutes were correct, then President Obama’s orders to Smith—presumably, to obtain and analyze intelligence that might be used in Operation Inherent Resolve—would be unlawful (as were President Adams’s orders to Captain Little), and that Smith himself would be acting unlawfully by following those orders.  Smith’s brief states, for instance (p.11), not only that “officers have an overriding obligation to follow Congress, even at the cost of disobeying their commander-in-chief,” but also that “he has been ordered to take action—fighting ISIS—that he believes violates the War Powers Resolution.”  That can’t be right.

Even if it were correct that the WPR required the President to withdraw troops from Iraq and Syria some months ago, that would not mean that command orders to Captain Smith, from President Obama or from military officers lower down in the chain of command, would themselves be unlawful.  And it certainly would not mean that Smith himself­ would violate any statute, or otherwise violate any law, if he were to gather or analyze intelligence pursuant to such orders.  Neither the War Powers Resolution nor any other law prohibits such intelligence-related conduct, in the way the congressional enactment in Little prohibited the seizure of ships heading to France.

Indeed, if Smith’s theory were correct, it would mean that every single military officer who has been involved in Operation Inherent Resolve has been violating the law, every day, for many months, when they do what their superiors order them to do.  Surely, that is not the case.  The directive of section 5(b) of the WPR is specifically directed to the President himself (“the President shall terminate any use of United States Armed Forces . . . .”).  It does not regulate the actions of the thousands of military personnel who are engaged in the war, even if the President was obligated to withdraw some of them from hostilities.  (This is, in effect, the domestic-law equivalent to the fundamental modern distinction in international law between the jus ad bellum and jus in bello, which guarantees that even if a state is acting illegally in fighting a war, its soldiers do not violate the law in the service of their state’s impermissible campaign, so long as they comply with the rules for how such wars must be fought.)

Smith’s case therefore does not resemble Little v. Barreme.

On the other hand, Captain Smith’s case is analogous to the Rodearmel case that he tries, unpersuasively, to distinguish at pages 10-11 of his brief.  Rodearmel was a Foreign Service officer who alleged that Secretary of State Clinton was constitutionally ineligible for the office she was holding.  He argued that this meant all of her orders were ultra vires, and that, in turn, his own “serving under, taking direction from, and reporting to” Secretary Clinton would also be unlawful, and thus “in direct and unequivocal conflict with the oath [he] took to defend and bear true faith and allegiance to the U.S. Constitution and to faithfully discharge the duties of his office.”

A three-judge panel in the District for the District of Columbia held that Rodearmel lacked Article III standing because he had failed to allege any “specific constitutional violation that he believes he would be committing by remaining under [Secretary Clinton’s] supervision.”

So, too, in Captain Smith’s case. He has not alleged any “specific constitutional violation”—or violation of any other law, either—“that he believes he would be committing” if he were to gather and analyze intelligence, pursuant to military orders, in support of Operation Inherent Resolve.  That’s fatal to his Article III standing.

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* “I confess,” Marshall wrote, that

the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages.  I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas.  That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey them.  I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation.

Apparently the other Justices convinced Marshall that the law was otherwise:  “I have been convinced that I was mistaken, and I have receded from this first opinion.  I acquiesce in that of my brethren.”

** As Mark Osiel has explained, the “drawbacks” of the absolutist position reflected in Little—and of its opposite, i.e., the view that subordinate officers are never liable—were “almost universally recognized by all students of the problem.”  “The compromise reached by most national codes of military justice and most sources of international law,” then, “has been that a soldier may presume the lawfulness of superior orders, and will be excused from punishment if they prove unlawful, unless they require acts so transparently wicked as to foreclose any reasonable mistake concerning their legality.”  The current law in the U.S., at least in the criminal context, was famously expressed in the Calley case:  “The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.” 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).