First Circuit rejects war powers appeal

[JURIST] The US First Circuit Court of Appeals [official website] Thursday upheld a lower court ruling - previously reported in JURIST's Paper Chase - that had dismissed a complaint seeking a preliminary injunction to prevent President Bush and Secretary of Defense Rumsfeld from initiating a war against Iraq without proper Congressional authority. In the appeals court, Judge Sandra Lynch wrote:

Many important questions remain unanswered about whether there will be a war, and, if so, under what conditions. Diplomatic negotiations, in particular, fluctuate daily. The President has emphasized repeatedly that hostilities still may be averted if Iraq takes certain actions. The Security Council is now debating the possibility of passing a new resolution that sets a final deadline for Iraqi compliance. United Nations weapons inspectors continue their investigations inside Iraq. Other countries ranging from Canada to Cameroon have reportedly pursued their own proposals to broker a compromise. As events unfold, it may become clear that diplomacy has either succeeded or failed decisively. The Security Council, now divided on the issue, may reach a consensus. To evaluate this claim now, the court would need to pile one hypothesis on top of another. We would need to assume that the Security Council will not authorize war, and that the President will proceed nonetheless.... If courts may ever decide whether military action contravenes congressional authority, they surely cannot do so unless and until the available facts make it possible to define the issues with clarity.
Judge Lynch continued:
Nor is there clear evidence of congressional abandonment of the authority to declare war to the President. To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress. It has enacted several relevant pieces of legislation expressing support for an aggressive posture toward Iraq, including authorization of the prior war against Iraq and of military assistance for groups that would overthrow Saddam Hussein. It has also accepted continued American participation in military activities in and around Iraq, including flight patrols and missile strikes. Finally, the text of the October Resolution itself spells out justifications for a war and frames itself as an "authorization" of such a war. It is true that "courts possess power to review either legislative or executive action that transgresses identifiable textual limits" on constitutional power.... But courts are rightly hesitant to second-guess the form or means by which the coequal political branches choose to exercise their textually committed constitutional powers. As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.
Read the complete judgment in Doe v. Bush [PDF].

 

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