The U.S. District Court for the District of Columbia on Nov. 21 dismissed the suit brought by U.S. Army Captain Nathan Michael Smith challenging the legality of the military campaign against ISIS under Operation Inherent Resolve. The opinion by Judge Colleen Kollar-Kotelly rejecting the suit on political question grounds is troubling. (Judge Kollar-Kotelly also denied Smith had standing based on his claim that continuing to fight in an unauthorized military action against ISIS would violate his oath to support and defend the Constitution). The Obama administration’s release last month of its Report on the Legal and Policy Frameworks Guiding and Limiting the United States’ Use of Military Force and Related National Security Considerations (“Framework Report”), while admirable in several respects (see Marty Lederman’s comprehensive summary), crystalizes concerns about the potential ramifications of the political question ruling in Smith v Obama.
In Smith, the plaintiff maintained that neither the 2001 nor 2002 Authorization for Use of Military Force (AUMF)—the former enacted for al Qaeda and the Taliban, the latter for Iraq—constituted authorization for military action against ISIS. Such action, the plaintiff therefore argued, was unlawful under the 60-day time limit imposed by the War Powers Resolution. The district court held that the suit presented a nonjusticiable political question because the issues raised were primarily ones committed to the political branches of government and because the court lacked judicially manageable standards. This holding, as Michael Glennon has argued here, and Marty has argued here, here, and here, misconstrues and misapplies the political question doctrine. In short, a suit asking a court to interpret the scope and meaning of a congressional force statute—and, particularly, what entities it applies to—presents a legal question squarely within the province and ability of the judiciary to decide.
Smith’s suit, in the court’s view, would have failed anyway for lack of standing. But the court’s political question ruling sweeps more widely and if followed, would bar suit by future plaintiffs raising similar merits claims even where they unquestionably had standing. Those future plaintiffs could include, for example, individuals detained by the United States or harmed by U.S. drone strikes (including family members of individuals killed in such strikes). The ruling would foreclose those persons from claiming that the U.S. action was illegal if it were predicated on their connection to ISIS or to another group that fell outside current force authorizations.
The Obama administration’s Framework Report underscores these concerns, particularly as executive power is handed to a Trump administration that could jettison existing policy constraints while further enlarging America’s forever war against terrorist groups.
The Framework Report highlights several broader trends. First, it reinforces that the U.S. armed conflict against al Qaeda and the Taliban seems only to expand, not contract, with time. Since 2001, it has extended to other groups, whether because they fall under the al Qaeda umbrella (like ISIS) or are deemed associated forces (as al-Shabaab recently was).
Second, the Report underscores that, under the current framework, the president generally has authority—even if he does not exercise it—to detain and target individuals based solely on their purported membership in a military group covered by the 2001 AUMF. That authority thus permits status-based detention or targeting, without resort to claims of self-defense.
Third, the Report reinforces that additional restrictions on this broad legal authority exist only as a matter of policy. As such, they may be discarded by the next administration. Further, the policies themselves—which apply heightened requirements for using lethal force outside areas of active hostilities—have proven susceptible to workarounds in practice (See the valuable New York Times reporting by Charlie Savage, Eric Schmitt, and Mark Mazzetti on how in Somalia the U.S. military has avoided limitations in the May 2013 Presidential Policy Guidance through assertions of an independent power of collective self-defense, which includes assistance to U.S. partners on the ground).
Courts remain an important check on elastic counterterrorism powers. This check will become even more important in a Trump administration that expansively interprets existing—or future—force authorizations while disregarding restraints. In the past, suits challenging particular drone strikes—both ex-ante and ex-post—have been dismissed on threshold justiciability grounds. Smith, however, is the first decision to hold that the central underlying question—the meaning and scope of executive power under a congressional force authorization—is itself a political question. As Smith explained “Plaintiff asks the Court to second-guess the Executive’s application of these statutes to specific facts on the ground in an ongoing combat mission halfway around the world” (emphasis in original). Smith’s rationale would prevent other challenges to the application of force authorizations not only to ISIS, but also to other, yet unidentified, groups.
This rationale, moreover, could be extended not only to targeting but to detention as well. Judge Kollar-Kotelly, to be sure, tried to distinguish habeas corpus cases where a petitioner claims his detention is illegal (See footnote 17 of her opinion). Yet, Kollar-Kotelly’s reasoning could still be read to foreclose such a claim if it rested on the argument that Congress had not authorized the use of force against a particular group—a claim that might be made by an alleged ISIS supporter whom Trump brought to Guantanamo. Surely, however, the scope of a congressional force authorization—including what organizations Congress intended it to cover—is properly subject to judicial determination.
Judges will be a crucial first line of defense if the Trump administration aggressively wields U.S. military authority against suspected terrorists. Misguided and overbroad use of the political question doctrine to block judicial review on such fundamental questions as with whom the nation is at war in a conflict that grows more amorphous over time is a worrying precedent. Other judges are not bound by the district court’s decision in Smith, and should not follow it.