The Fruits of War Are Fearsome; Citizen Files for a Restraining Order (Maxwell v President of the United States)

by Dee McLachlan

The Pope, sensing “the winds of war,” has ordered that this tragic photo of a boy — with his dead brother on his back — be distributed with the Italian words “Il frutto della guerra” — “The fruits of war.”  It is a scene from 1945 when the Americans needlessly dropped an atomic bomb on Nagasaki – needless in that the Japanese were already asking for peace. The Pope is now looking for peace.

Can we stop the trend toward world war? You may recall Mary Maxwell’s September 1, 2017 article at Gumshoe “Why Not Take Trump to Court Over His Threat To Bomb Syria and Iran.” Mary had already tried that when President GW Bush threatened to bomb Syria and Iran, back in 2006. Her case was dismissed as non-justiciable.

She has now gone to court again, on November 21, 2017, this time asking that President Trump be ordered to obey the Constitution by getting Congress’s agreement to use nuclear weapons, and to make pre-emptive strikes.

Mary was surprised to receive a letter only one week later advising her that the magistrate judge plans to recommend that the chief judge dismiss the case on “non-justiciability.” Mary was given 14 days to submit her objections.

The case can be downloaded at PACER.com. A summons has been served on “the Defendant” but he has not yet made a statement.  “The plaintiff” permits me to upload the reply she sent to the magistrate, as follows:

Re: Maxwell v President of the United States      Civil action 1:17-cv-00628-JL

US District Court, District of New Hampshire                     December 11, 2017

I hereby submit my objections to Magistrate Judge Andrea Johnstone’s recommendation to Chief Judge Joseph N Laplante that my case be dismissed.

Justiciability and Jurisdiction of My Case

My filing meets the US Constitution’s requirement regarding “cases or controversies” as I am dealing with a major controversy.  Could anything be more major than a president usurping the Congress’s grant of the power to make war?

The fact that the courts have developed doctrines, namely, standing, ripeness, mootness, and the political question, is not enough to obviate the Framers’ intent. The Third Branch is tasked with entering into this dispute. Nothing in the Constitution bars them.

Here I ignore “ripeness and mootness” and be concerned only with doctrines on which the Magistrate Judge recommends dismissal of my case: the political question and standing.

The Political Question

It is reasonable to hold that the two political branches, the Legislature and the Executive, have sole responsibility for making domestic law and policy and foreign policy. But the Judiciary always plays a role in “sorting out” — when needed – different parts of the Constitution. The US Supreme Court’s greatest moments occur when doing just that.

The Constitution’s balance of powers is a massive force for “domestic tranquillity.” In Hamdi, Rasul, Hamdan, and Boumediene, SCOTUS did the needful to curb the presidents’ claims to a newly concocted, unconstitutional “plenary power,” in foreign affairs.

If the two political branches are erring, who is available stop them? Congress can stop a president from erring by impeaching him, or just by threatening to do so. Of course that’s an event to be avoided if possible, as it would “shake up the population” and maybe weaken us internationally.  Better the court should apply the needed discipline simply by a ruling.

In my case, the judge would only have to say: “President Trump is hereby ordered to obtain Congress’s authorization before waging war, and to obtain Congressional approval for the policy of pre-emptive nuclear strikes.”

For all we know, the current president and many current legislators may be strongly wishing the Judiciary would say precisely that.  A sad fact of life today is that none of us really knows who may be pressuring the president or Congressmen. Let the people shield them!

We can’t rest on textbook descriptions of our democracy, which say that politicians answer mainly to their constituents. I don’t know anyone who thinks that. But who should force reality to conform to that textbook definition — to make representatives answerable to the people? We citizens, and any officers of government, should do it. We can use the ballot box, plus education and communication, to correct the behaviour of the Legislature.

But some Congresspersons want to prevent that! For example, they passed a law, as part of the 2012 National Defense Authorization Act, that deleted the prohibition of spending federal money to propagandize the American public. It’s legal now to use any psychological skills of the propagandist to dis-educate folks about a particular political candidate or about the meanings in the Constitution’s text. Hence we are turning to the courts for help.

Was There a Gradual Change in the Law?

I belong to the Federalist Society and participate in their Teleforums. Recently a speaker (a professor) said that it’s not clear who has the task of deciding on war. I said “Yes, it is very clear, in Article I, section 8.” He said “There is no jurisprudence.” I said “Yes, there was jurisprudence, up to the Steel Mills case in 1952, saying it is Congress’s job.”

The speaker then said that there hasn’t been any jurisprudence since that ruling. I don’t know if he is technically correct. There were 22 cases filed between 1952 and 2006 when I researched this in 2006. Probably I missed some, and since 2006 there have been others.

All were dismissed. None was appealed to the Supreme Court, very few even went beyond the district court.  So is the professor correct to say “There has been no jurisprudence”? I am inclined to think that the dismissals are a kind of ruling. Every one of them said, in effect, “We will not enter into this matter. We choose not to enforce Article I, section 8.”

Sixty-five years have passed – two generations — since the steel mills case (Youngstown v Sawyer). During that period, as all the world knows, the United States has engaged in many military operations, usually without Congress’s nod, i.e., the people’s nod.

An exception is the fact that in 2001 Congress passed the AUMF – Authorization for the Use of Military Force.  The Act was passed on September 14, 2001, that is, 72 hours after the World Trade Center was attacked and when Americans were told that Afghanistan was the attacker (or more specifically that Afghanistan was harbouring the mastermind, Bin Laden, a Saudi national). We all panicked. Who could think straight?

In any case, since the professor at the Teleforum thinks there’s been no jurisprudence – and he takes that to mean there has been a gradual acceptance of a presidential prerogative for war-making — I must deduce that the Judiciary has acted pro-Executive branch!

The judicial branch by its silence, when asked 22 or more times to make a ruling on Article I, section 8, has created the “acceptance” to which the professor referred. Twenty-two rulings of “We won’t rule” must surely convey something. I don’t think it conveys that 22 Mary Maxwell types brought non-justiciable cases.

The wars involved in the 22 cases were in Vietnam, Cambodia, El Salvador, Nicaragua, Grenada, Persian Gulf, Iraq, Kosovo, Iran/Syria.  Some of these, such as Grenada, caused no American deaths, but most did.  The Vietnam toll was 55,000 US soldiers.

I will now show that although all the cases get denied on grounds of justiciability, there are still valuable opinions from judges saying that such problems are justiciable. (I mean in addition to the authority of Youngstown v Sawyer, which is still the precedent.) I will mention Doe v Bush (2003) and Massachusetts v Laird (1971).

Doe v Bush (2003)

One case made it to the 1^st Circuit appellate court for our region. It was dismissed for lack of ripeness. The complaint, by soldiers and parents of soldiers, was that the imminent invasion of Iraq by the US would be a violation of Article I, section 8 of the Constitution. The appellate judges said:

“Entrusting such decision making power to the president in the context of the present case – where the president is asserting determination to use that power in an unprecedented fashion, for offensive war of an extraordinary kind – would profoundly alter the constitutional structure.  The disastrous consequences cannot be overstated.  Liberty is always at stake when one or more of the branches seek to transgress the separation of powers. (Clinton, supra, Kennedy, J., concurring, at 450). Never could liberty be more threatened than when the president, or Congress, or both together would alter the separation governing the most momentous and dangerous of the Constitutional powers.” [Emphasis added]

Even though they said all that, they upheld the dismissal. They ruled on March 13, 2003 that the case was not yet ripe. Five days later President Bush ordered the invasion of Iraq.

Massachusetts v Laird (1971)

One case “made it to the US Supreme Court,” Commonwealth of Massachusetts v Laird (1971) — but that is because when a state is the plaintiff, the Supreme Court has original jurisdiction. So, just as my humble case is under threat of dismissal, so did the Commonwealth of Massachusetts get a dismissal (on the basis of justiciability). However, Justice Douglas wrote a dissent, in which Justice Harlan concurred. It said:

“we have never ruled, I believe, that when the federal government takes a person by the neck and submits him to punishment… the complaining person may not be heard in court.  The rationale in cases such as the present is that government cannot take life, liberty, or property of the individual and escape adjudication by the courts of the legality of its action… Today we deny a hearing to a state which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war….  The question of constitutional war is neither academic nor political… it should be settled here and now.”  [Emphasis added]

In sum, I disagree that my case should be dismissed on the political question doctrine.

Standing

The doctrine of “standing” is long overdue for repair. Who’all is a court made up of? I say it is made up of society. In small societies that have a village chief, people gather to hear two “litigants” state their arguments. It will be obvious who “wins,” as the people gathered around will create a ruling of some sort. The chief will but enunciate it.

Since 1787 we have lived in a large society where the presence of the public is not feasible in that way. But no matter — we have centuries of English law, and then American law, to stand in, as it were, for the people. The court today is the people; the court is, also, the law.

Do I mean that the people and the law are the same thing? Yes, more or less. The law contains our values. It stands for how our society apportions power. Then we set up various governmental structures to apply the law. It would be ridiculous to say that the people do not have “standing” to question the law. They own it. No one else owns it.

I hope the day is not coming in my lifetime when people have to “take the law into their own hands” — although they should, if there be no one else willing to do it, such as police.

Magistrate Judge Johnstone has recommended that I do not have standing.  The soldiers in Doe v Bush were granted standing – but it would be better for soldiers if the challenge is made not by them but by a citizen. It must be extremely awkward for troops to challenge the president, as it goes against the grain of patriotism.  It could even cause a mutiny.

Concrete Injury

In recommending that my case be dismissed, the Magistrate Judge has pointed to the 2002 decision in Mahorner v Bush (at the District of Columbia District Court) that “plaintiff’s allegation that [plaintiff] will suffer an increased chance of losing his life if [the President] initiates a military conflict … amounts to nothing more than speculation.”

I suppose any prediction of anything – that it will rain next month – can be called “nothing more than speculation.” True, I don’t know for sure that President Trump intends to do war. He did do war in April of this year by striking Syria, so it is not at all far-fetched to say he’ll do it again. He has often talked about striking North Korea, even with nuclear weapons. “The public” now believes (correctly or incorrectly) that we will go to war soon.

I do not ask that President Trump be prevented from making war, or from using a pre-empt-ive nuclear strike. I only asked that Article I, section 8 of the Constitution be adhered to.

(Speaking personally, I think it would be good to have a pre-emptive strike policy.)

My claim that I may be injured is not a “speculation of the future.” I am injured right now by the anxiety created by President Trump’s threats. In the 1950s when I was growing up, “atomic war” was widely held to be the greatest worry of the American people. It colored everything; it dictated policy. It is not silly to worry about it today.

I grieve over the possibility that our magnificent biosphere could be ruined by radiation. We have already caused ‘untold’ damage by using depleted uranium in the Middle East. Our president should not have to shoulder the huge responsibility of making up his mind as to whether the people want him to use “nukes.” Their representatives in Congress must set that policy. Failing that, a stroke of a judge’s pen could set things right.

Constitutional Protection of the Balance of Powers

My pleadings said, in Section V. Request for Relief:

“Plaintiff asks the court to enjoin President Trump from making war without Congress’s say-so.  Plaintiff claims she is entitled to this relief in that she will likely suffer injury related to war. She is also entitled to live in the safety that the Constitution provides by way of its balance of powers.” [Emphasis added]

I lived in great peace from 1947 to 1980 (at which point I moved overseas, for marriage). It was so wonderfully reassuring to know that we had a Constitution and loads of citizens eager to protect it. How I pitied countries that did not have such a marvellous invention!

I am now back in the US and I can barely find that Constitution. All of the rights in the Ten Amendments are being eroded.  Sometimes they are eroded by the US Supreme Court, as in the Albert Florence strip-search case. It also may be that new generations don’t even know about the Constitution, so can hardly be on duty to support it.

As argued above, the reluctance of the Court to adjudicate key cases and controversies is terrible. It is blatantly political. We want the court to be the protector of the Constitution. I have a PhD in Political Science; I see all the power moves involved. Accumulations of power harm society. We need the court to act firmly on the side of law, not power. (Note: although I asked for injunctive relief, the court could give declaratory relief.)

Captain Nathan Smith

My claim of injury is somewhat like that of Army Captain Nathan Smith who in 2016 filed a case, Smith v Obama, that has now been changed to Smith v Trump. While on duty in Kuwait he was bothered by the fact that he’d taken an oath to protect the Constitution, yet was participating in an illegal war. He wants the Judiciary to sort that out. The DC District Court has so far dismissed him on the political question and, amazingly, on standing.

In 1973 Congress passed the War Powers Act in response to the Vietnam War. The Act allows a president to engage in war for 60 days. If by the end of 60 days, he has not obtained Congress’s say-so, he must pull out of the war action within 30 additional days.

As Professor Louis Fisher, author of Supreme Court Expansion of Presidential Power: Uncon-stitutional Leanings (2017) notes, the War Powers Act was breached by President Obama when he stayed in Libya for more than 60 days, did not seek Congress’s approval, and then continued to stay past 90 days, indeed for months, offering no legal justification for this.

So Libya was an illegal war on the face of it. Captain Smith could have been caught in it. The war he was actually in is the one against ISIS, which is illegal for the same reason.

Besides dismissing Smith on the political question, the district court said he lacks standing – as, unlike the soldiers in Doe v Bush, or the draftees in Massachusetts v Laird, he went to war voluntarily. (Indeed he vigorously opposes ISIS.) Smith v Trump is now in appeals.

Nuclear War and the 21^st Century

Sixty-five years on from the Steel Mills case, a lot has changed in the world. Most nations, including the US, have yielded more of their sovereignty than was expected. Citizens often don’t know who the boss is, who is making decisions, or what “they” have in store for us.

Do we know what guides President Trump? His personal background is in business, and many of his Cabinet picks are CEO’s of the largest corporations. We’re not looking at Thomas Jefferson here. But is there a citizenry that can carry the legacy of the Republic forward? Yes. The 22 persons who brought civil actions are among those who care.

The military industrial complex is hugely powerful. The campus known as “the Pentagon” is now occupied mainly by members of the defense industry, not military officers. What are their motivations? What is their “foreign policy”? Do they wish for nuclear war?

The ability of other nations to strike us is overwhelming. In such an environment it is particularly harmful for the courts to abandon their custody of the Constitution. I’d go so far as to say that the Constitution is our most solid weapon against “the enemy.”

If all Americans, including, especially, members of government, would stick by the parchment, they would be sticking by each other – no small thing in this scary world.

Unless these old eyes deceive me, the eroding of the Constitution is part of a well-planned attack on the United States. “World government” may be behind it, but it looks American-based to me. Who would do that? Frankly, I think whacko’s do it. Some say the powerful are committing sins for selfish benefit. I disagree. They are just whacko.

If we have gone off the track from a good path that we were on, we can now go back and reclaim it. The courts are perfectly placed to assist the nation in this endeavour. There is a well-established maxim: Lex semper dabit remedium — The law will always furnish a remedy. And: Boni judicis est ampliare jurisdictionem — A good judge enlarges his jurisdiction.

In the Great Republic, access to adjudication in life-or-death matters can’t be blocked by “doctrines,” such as standing, political question, or non-concrete injury.

“A republic, Madam, if you can keep it.”

Respectfully submitted, pro se

Mary Maxwell, 177 Loudon Rd, Apt 203,

Concord, NH 023301.     Tel: 603 229 7215.