Striking Iran and Syria:  Plus ça change  

by Mary Maxwell, LLB, current candidate for the US Senate from Alabama

Editor’s note: In 2006 Mary Maxwell sought an injunction against the bombing of Iran and Syria, on constitutional (separation of powers) grounds. This is her reply to a motion to dismiss.. She has added some bolding for Gumshoe readers.  The matter is newly relevant today.

United states district court FOR the district of New Hampshire MARY MAXWELL, Plaintiff  V  PRESIDENT GEORGE W BUSH, et al, Defendants CIVIL ACTION NO.  F-1-0-6-CV-348PB Memorandum in response to the defendants’ Motion to Dismiss. 

Defendants [President Bush et al] have submitted a motion to dismiss this case as nonjusticiable.  Their grounds for applying the doctrines of ripeness, standing, the political question, and prudential concerns are incorrect.  As shall be argued below, this case is justiciable.

PLANTIFF’S REQUEST TO RE-WORD THE PRAYER FOR RELIEF

We concede that the prayer for relief as stated fails to present a claim on which relief can be granted, because it was poorly worded.  It said that the Court should order the president to refrain from attacking Iran and should order Congress to conduct hearings.  The defendants correctly point out that no such order to the president may be permissible because the president is free to use military force in various ways short of war.  Also, no such order to Congress may be allowed because only Congress can set its rules.  Thus the plaintiff now seeks leave from the court (on an accompanying letter) to amend those two items which were listed as “(b)” and “(c)” on the original Complaint with the following words:

• Order that Defendants President George Bush and Vice President Richard Cheney obtain clear Congressional approval before making war;
• Order the Defendants to obtain Congressional approval for the new policy of pre-emptive strike and the policy of the tactical use of nuclear weapons.

THIS IMPORTANT CASE MUST BE HEARD

Executive overreach is the most important issue in our nation today.  President Bush (like President Nixon) has openly said that he is above the law and that he can violate the law and not be held accountable.  As it happens this is a problem that does not often reach the judicial branch.  Five reasons for that are:

1. The mainstream media are in favor of an all-powerful executive and they rarely tell the people what a terrible assault on the Constitution is taking place. Indeed, the media ridicule persons who say this is so.
2. Congress won’t assert its prerogatives. This is partly a mechanical problem; directors of Congress have established a committee system and a two-party division that thwart Congress’ role as representative of the people.
3. Criminal wrongdoing by high government officials does not result in prosecution; this is because the positions of Attorney General and federal prosecutor are political appointments within the president’s administration. The public, not knowing this technical problem, absorbs the idea that ‘presidents can get away with anything because that’s the way it is.’
4. Law journals, law schools, and organizations of the legal profession no longer wax idealistic about defending the Constitution. The culture within the profession today is one of working for promotion in a large firm, expressing ‘patriotism,’ and demonstrating one’s Machiavellian ability to win a case via strategy, not principle.
5. Human nature reigns: People would rather let the problem slide for another week or so.  People want to look up to their leader.  People want to believe that all pieces eventually fall into place.  People do not have traditional means in America, for gathering together to proclaim righteousness, since they grew accustomed to having the good journalist or the good law advocate be there spokesperson during national crisis.

Where is the third branch?  Why has no modern war-power case reached the Supreme Court?  An early challenge to the ‘war on terror’ and presidential overreach arouse from three American citizens labeled enemy noncombatants:’ John Walker Lindh, Yaser Hamdi, and Jose Padilla.  The Bush administration was able to deprive Lindh and Hamdi of their day in the sunshine of the court by offering a plea bargain.  In regard to Padilla, the defendant’s attorney, The American Civil Liberties Union, unwisely placed him into the same case as that of foreigners – ‘Muslims’ caught on the ‘battlefield’ for whom there would be no American groundswell of support.

Despite a dissent from Justice Scalia that rang of high constitutional principle, habeas corpus was not granted to Padilla; the case was remanded to the lower court.  All of this took years and finally Padilla’s case was ready to be heard on its own by the Supreme Court.  The Department of Justice’s mission had already been accomplished – the lingering of an American citizen in prison with no right of habeas corpus was precedent setting.  Then came the day that Padilla’s case made its way up, alone, to a second chance at the Supreme Court.  George Mason would have considered this the most important moment in the United States.  It was he who insisted, pre the 1789 Bill of Rights, that the delegates in Philadelphia in 1787 not sign the Constitution until at least one right – the Great Writ of habeas corpus – was included.   Tellingly, the president changed Padilla’s status from enemy non-combatant to ordinary criminal a few days before the case was to be heard.  The Court could have opted to hear it despite its being moot.  (In 1973 they heard the abortion case Roe v Wade well after Mrs. Roe’s baby was born.)  However, the assent of four justices are required for the acceptance of a case and only three accepted it.

NO MODERN WAR-POWER CASE HAS GOTTEN PAST THE GATEKEEPER

As for the many war-power cases, such as the present one, the court chooses not to let them get to the merits and thus never lets the American people know what their judgment would be, as to the constitutionality of war-making without Congressional assent.  Citizens, soldiers, and several Congresspersons have sought help in regard to the 1970s wars in Vietnam and Cambodia, the 1980’s invasions of Panama and Grenada, the 1990’s ‘humanitarian’ war in Kosovo and Desert Storm in Iraq, and in the 2000’s, the threatened invasion of Iraq, which has now become the wholesale destruction of that nation, on the basis of no justification whatsoever.  All of these cases were dismissed or denied as nonjudiciable and the few that were appealed were affirmed.  None made it to the Supreme Court.  Yet in a sense those cases have been ‘decided’ – in favor of the executive.  Professor Harold Koh, in his 1990 book The National Security Constitution, makes the following tragic observation:

The late Bob Cover recognized that judging is a quintessential act of violence, with violence flowing as much from a refusal to judge as from the act of judging itself.  “The jurisdictional principals of deference are problematic,” he declared, “precisely because, as currently articulated by the Supreme Court, they align the interpretive act of judges with the acts and interests of those who control the means of violence.”*  Thus, the role of judges is to define the rule of law by drawing the line between illegitimate exercise of power and legitimate exercises or legal authority.  The Supreme Court drew precisely such a line in Youngstown.  In my judgment, however, the federal judiciary failed to perform a similar task during the Vietnam War, in no small part because Congress had largely failed to make its own intentioned clear.  *R. Cover, Justice Accused pp226-38 (1975)

THE FRAMERS’ INTENT REGARDING WAR POWERS

Other than by bald assertion (by the President, Vice President, Attorney General, Secretaries of State, Defense, Homeland Security, etc.) the office of the president of the United States possesses no unlimited powers.  The entire thrust of the Constitutional Convention of 1787 was to come up with a federal government strong enough to protect society, both internally and in the face of hostile foreign nations, and yet avoid absolute monarchy like Britain under King George III.  As every schoolchild knows, when handing out the legal powers of government, the Framers handed most to ‘the people.’ That meant handing them to Congress, as no one predicted that a body of representatives facing election by their constituents every 24 months, could become something other than representative of the people’s wishes and welfare.

The right to make war was thus deliberately withheld from the president as it was clearly seen that such a thing expands presidential power.  It has been remarked in recent times that Prime Minister Margaret Thatcher made war in the Falklands, in 1981, in order to promote her own strength in Parliament and in order to assist the passing of unpopular domestic laws.  We can assume, as did the Framers, that all such opportunities of that kind arise regularly, and that this is why it is essential to legally deprive the American president of the war making power.  Alexander Hamilton, writing to the People of New York in 1788, explained as follows:

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States….” In most of these particulars, the power of the President will resemble equally that of the king of Great Britain and of the governor of New York. The most material points of difference are these: — The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article [proposed Article I, section 8], therefore, the power of the President would be inferior to that of either the monarch or the governor.  Second. The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies — all which, by the Constitution under consideration, would appertain to the legislature.  – Alexander Hamilton

YOUNGSTOWN (THE STEEL SEIZURE CASE) AND THE JACKSON THREE

In 1953, President Truman attempted to seize the steel mills in the face of a threatened labor strike, claiming that the nation needed steel for its forces in Korea.  The Youngstown Sheet & Tube Company sued.  It said that since Congress had not declared war, the president could not utilize war powers to commandeer property.  Justice Robert Jackson, in an opinion concurring with the majority, articulated the principle of separation of powers in memorable words:

The actual art of governing under our Constitution does not, and cannot, conform to judicial definitions of the power of any of its branches based on isolated clauses, or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government….

It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

Jackson then envisions three categories:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. [n2] In these circumstances, [p636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty….
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law. [n3]
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb… Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

SEPARATION OF POWERS AS SEEN BY THE FIRST CIRCUIT IN DOE V BUSH

            Youngstown has not been superseded.  It is the precedent in the case at hand.  The most recent treatment of the subject matter is found in Doe v Bush.  There, the plaintiff opposed the legality of President Bush’s plan to invade Iraq in 2003, on the grounds that Congress had illegally delegated its war-declaring power to the president.  After acknowledging that Supreme Court decisions that dealt with relatively minor war powers would not be germane (such as Curtiss-Wright, 1936 and Loving, 1996) the Court said:

The minor forms of power at issue in those cases cannot be analogized to the infinitely more consequential war-initiating power.  Both the enormity of the war-initiating power and uncontested reality of the Framer’s intent to locate it in Congress alone argue strongly against the permissibility of Congressional delegation of that power to the president.

In the present case, Plaintiff claims that this time Congress has gone further than it did in the Iraq case (where, by passing the October Resolution, it left some of the decision making to the executive).  In regard to Iran she points to the failure of Representative Peter DeFazio’s Resolution.  By that failure, Congress has made known its abdication of its exclusive power to declare war.  DeFazio had asked his colleagues, in that resolution, to enunciate a protest of Secretary of State Condoleezza Rice’s claim for sole executive authority in determining whether to attack Iran.

Doe v Bush was ruled nonjusticiable on grounds of ripeness, nevertheless its three-judge-panel spoke strongly against tampering with the Constitution’s separation of powers.  They quoted Justice Breyer’s dissent in Clinton v City of New York, 524 U.S. 417 (1998).  He identified two principal functions of the separation of powers doctrine.  “First, the doctrine ensures encroachment, i.e., against Congress giving away its own power in the form of a delegation… without sufficient check…. Secondly, the doctrine assures against aggrandizement of the branch to which Congressional power is delegated.”  The judges in Doe v Bush 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.

JUSTICIABILITY:  Ripeness, Standing, the Political Question Doctrine, AND PRUDENTIAL CONSIDERATIONS

Youngstown, in 1953, was the last war-powers case to be decided in favor of a challenger to presidential authority.  The many cases of the subsequent 40 years were found to be nonjusticiable.  Of these, the only binding precedent is Doe v Bush.  As mentioned above, it did not doubt Congress’s responsibility to man its war powers, yet the case was dismissed as unripe and was never adjudicated on the merits.    Ironically, the judges invoked unripeness on March 13^th and President Bush invaded Iraq on March 18^th.  They said:

Plaintiffs’ claim that Congress and the President have transgressed the boundaries of their shared war powers, as demarcated by the Constitution, is presently insufficient to present a justiciable issue.  [Our assessment is that] before courts adjudicate a case involving the war powers… they must be presented with a case or controversy that clearly raises the specter of undermining the constitutional structure.

In the present case, Defendant’s’ motion to dismiss on grounds of nonjusticiability shoots with four barrels: standing, ripeness, political questions doctrine, and prudential considerations, as follows:

1. Standing: “Plaintiff lacks standing both because she has not alleged any particularized injury and because the injury she does allege is neither actual nor imminent.”

That is correct only in regard to the requirement that the injury be particularized.  Since any human being is at risk of cancer from radioactive fallout this Plaintiff has no special vulnerability.  The statement about imminence is incorrect.  The use of nuclear weapons against Iran by the United States or the use of conventional weapons that may hit a nuclear power plant in Iran causing fallout should be considered imminent at this point.  Not guaranteed to happen, but still likely to happen in the very near future.  It should be noted that while President Bush is not specifically saying he will go to war against Iran, Vice President Cheney has said that we will support Israel if Israel is at war with Iran.  The Israeli leadership, as of late November 2006, is speaking openly of such a conflict.  The Supreme Court said in Vermont Agency v US (2000) that a plaintiff must “establish causation – a ‘fairly… traceable’ connection between the alleged injury in fact and the alleged conduct of the defendant…” It is never possible to show that a particular cancer was caused by a particular environmental factor.  Here, however, no injury has occurred.  The whole point is to say that because Plaintiff and others would be at risk of cancer caused by Defendants weapons the use of those weapons should be avoided unless Congress authorizes it.

2. Ripeness: “Her claim is not ripe.  Both because it is based on contingent future events and because there is no constitutional impasse for this court to address.”

It is true that there is no constitutional impasse here, rather the opposite.  The fate of DeFazio’s Resolution stands for acquiescence by Congress in an unconstitutional transfer of power to the president.  Therefore, this case has been ripe ever since Congress declined to reply to Secretary Rice’s statement.

3. The Political Question Doctrine: “[H]er claim is barred by the political question doctrine because it seeks to have the judiciary determine the foreign and military policies that are vested in the elected branches.”

Defendants have incorrectly defined the political question doctrine.  It does not mean that the judiciary is barred from handling political issues; they handle political issues all the time.  The present case does not involve the political question doctrine.  In Baker v Carr (1962), a case involving reapportionment in Tennessee, Justice Brennan, in his majority opinion, wrote

“we conclude that the complainant’s allegation of denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and decision.”

Justice Clark, concurring, said that unless the federal courts provided relief there could be no remedy for what he believed was a patent violation of the constitution. Justice Douglas, in Massachusetts v Laird (1971),

“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.”

4. Prudential Considerations: “Adjudicating plaintiff’s claim seeking to prevent the President and Vice President from ‘attacking Iran and or Syria absent a Congressional declaration of war’ would likewise thrust this court into the midst of the political branches’ decision making… and would require this Court to determine the likelihood and appropriateness of military action in Iran or Syria… they are decisions of a kind for which the Judiciary has neither the aptitude, facilities nor responsibility…

That is totally incorrect.  The court will not need to make any decisions about war, only about the Constitution.

Besides these four, the Defendants’ motion to dismiss says “Additionally, Plaintiff is simply speculating that actions that the United States may or may not take against Iran are more likely to lead to nuclear war and or harm the health of Americans than the foreign policy that Plaintiff favors – to publicly foreswear any military options reducing the leverage of the United States and perhaps permitting Iran’s nuclear program to move forward unimpeded.”

That is incorrect. Plaintiff has not indicated any policy that she favors and does not ask the president to foreswear any military option but only to seek Congress’s approval first. 

RESPECTFULLY SUBMITTED [in 2006],

Mary Maxwell, PRO SE

179 Loudon Road, Apt 10 Concord, NH 03301

E-mail address:  mary.maxwell@student.adelaide.edu.au

Note: the above memorandum did not stimulate a reply from the lawyers for Bush et al.  US District Judge Paul Barbadoro simply marked my case “Dismissed.” He thus affirmed the OK-ness, as it were, of the presidential power grab.

–Mary Maxwell is presently trying a side door. See www.MaxwellForSenate.com