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Why Not Take Trump to Court Over His Threat To Bomb Syria and Iran

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Big picknickers

by Mary W Maxwell, PhD, LLB

Allow me to speak about the separation of powers in the US government as it bears on the matter of a future attack on Iran and/or Syria.  Here at GumshoeNews.com we have recently had a lot of breast-beating (as well we should) about the destruction of Iraq by the US and allies, and we worry about a war against the two last Mohicans on Gen Wesley Clark’s list, viz., “Syria, and finishing off with Iran.”

As an American who went to school in the 1950s, I have what must be considered a touching faith in the Constitutional structure and its ability to provide a safe life for people.

Our government has three branches, each performing a check on the other two. A major job of the Third Branch, the judiciary, is to catch either of the other two branches in the sin of behaving contrary to what is clearly spelled out as its role, its job description, in the Constitution.

Of course the Supreme Court does not prowl around like a detective looking for these sins – it can only “rule” when someone brings a case before it. Any citizen could bring a case, in federal district court, asking only for declaratory relief, with regard to President Trump’s threat to attack Syria or Iran without Congress’ permission.

The sections of this article are:

  1. The history since 1950 of plaintiffs’ challenges to presidential war-making sans Congressional permission.
  2. The history since 1973 of Congressional legislation attempting to share war powers with the Executive branch, up until the 2002 Authorization for the Use of Military Force against Iraq.
  3. The larger context of who is actually initiating these wars.
  4. The shape of requests for injunctive relief and declaratory relief.

History of Plaintiff’s Challenges

In 1952 there was a case, Youngstown v Sawyer, which went to SCOTUS (Supreme Court Of The United States), where the Constitution’s Article I, section 8, Clause 11 was upheld. That clause says “[The Congress shall have power] to declare war.” Youngstown is the only such case that got as far as the Supreme Court. It is also referred to as “the steel mills case.”

The president, Harry Truman, in 1952, tried to seize the steel mills in line with his responsibility as commander-in-chief during the Korean War. He wanted to have free rein on weapons production. Basically, SCOTUS said “Forget it.”

The matter turned on the fact that Congress had not declared war and therefore the Korean war was not a war, or something like that. I mean it was not a case where the issue was a grab by the president of the right to declare war. Truman was not trying to grab that right; he was trying to grab some steel mills.

Then there were 21 more cases, by the year 2006, all of which did specifically “sue” over wrongful presidential war-making. All were dismissed; none got a hearing on the merits. Amazing.

Three of them got only as far as a US District Court. 18 cases appealed their dismissal to a circuit court (one to the 8th Circuit Court, two each to the 1st, 2nd, 9th, and 10th Circuit Court, and a whopping nine to the DC Circuit Court.) No plaintiff went to SCOTUS. (Actually, the 1973 Cambodia case sort of did — as I will soon describe.)

Which wars were they yelling about? Eight yelled about Vietnam between 1967 and 1973,  two in 1973 were about Cambodia, one regarding El Salvador in was filed in 1983, one for Nicaragua in 1985, and one for Grenada in 1985. There were two in 1990 for the imminent Gulf War, four in 2003 protesting the Iraq war, one in 2006 abut Kosovo. Yours Truly filed one in 2006 about an imminent strike – which did not happen – against Iran and/or Syria.

Three of Those 21 Cases

These three deserve mention. First, Congresswoman Elizabeth Holzman, along with some officers of the US Air Force, filed in 1973 for an injunction against a proposed bombing of Cambodia on the grounds that Congress did not authorize such bombing. It was summer and the Court was in recess. They judge-shopped and approached Justice William Black.

He was about to grant their request and order a halt to any such bombing – like a restraining order. However, Justice Thurgood Marshall nixed it, causing Black to refer to him as “spaghetti spine.”

Second, Congressman Ronald Dellums and 10 other Representatives and one Senator sought an injunction against Bush Senior in relation to the fact that Saddam Hussein of Iraq had invaded Kuwait (the babies out of incubators episode, or the April Glaspie episode, take your pick). It appeared from the fact that Bush had installed a quarter of a million American soldiers there that he was up to something.

Dellums et al said they had a constitutional right under Article I, section 8, to vote on such a war. As indeed they do. Judge Harold Greene of the DC District went along with some of their right but finally dismissed the case on grounds of ripeness. He claimed the matter was not ripe for intervention by the Third Branch for two reasons:

One, not enough Congressmen joined the complaint. Two, how did one know it would come to the crunch? Bush’s secretary of State James Baker might still work things out diplomatically with Iraq’s Foreign Minister Tariq Aziz. Never mind those silly 250,000 US troops.

Third, there was a 2003 case filed by soldiers John Doe I, II, and III, and some parents of soldiers, hoping to stave off the invasion of Iraq. Millions of people around turned out to protest the threatened war, seeing it for what it was, shall we say. Note: some of the previous cases were filed by soldiers, such as the Vietnam ones. Clearly troops have standing.

The Justice Department tends to ask for a dismissal based on one of the following “defences:

–Ripeness, as mentioned above re Dellums’.

– the court wants to wait

–Mootness, the action has already occurred, so too late for an injunction (his was used in  the Grenada case – that war lasted only a weekend)

–Standing – you must show that the war will cause you an injury (In Maxwell v Bush, I said  the bombing cold lead to nuclear war in which I would be harmed), and

–The Political Question, the Court is not allowed to decide a political issue one way or the other — for example, whether or not we should wage war against a particular nation.

It is rather stunning that the John Doe case was dismissed on grounds of ripeness. The appeal was heard by three judges. Judge Sandra Lynch wrote the opinion, saying the conflict between the two political branches (as Congress and the Executive are called) had not come to a head. She wrote it on March 1, 2003. Iraq was invaded exactly one week later.

Note: She also wrote, which is so shockingly incorrect, that the court could not act if Congress gave the president “absolute discretion to declare war.” Help! Mommy! Daddy! James Madison! Somebody, help!

Legislation Concerning War Powers

Now to the matter of two attempts made by Congresspersons to excuse themselves from their solemn duty under Article I, section 8, Clause 11.

First, in 1973, owing to disgruntlement about the war in Vietnam, Congress passed the War Powers Act, purportedly to establish some sharing of the war-making job, between Congress and the President. After all, Article II of the Constitution says the president shall be commander-in-chief of the armed forces.

It has also been understood from our cradle days (1787) that if the nation received a surprise attack (the sinking of the USS Maine, anyone?), a president can’t wait to ask for Congress’s go-ahead. He should do what common sense demands.

Second, around the time Pres Bush Senior was attacking Iraq, Congress passed the first of three AUMF’s. This one was the Authorization for the Use of Military Force against Iraq, 1991. As described above, the action concerned baby incubators and April Glaspie. (Sorry, I know I should not use sarcasm here but I can’t very well bring myself to speak of Saddam’s invasion of Kuwait as if it were sprung on us as a surprise. Surely the US arranged for it to happen.)

The second AUMF is the Authorization for Use of Military Force against Terrorists. GumshoeNews recently covered that in the article “Representative Barbara Lee Sunsetted the AUMF but the Sun Rose Again.” Finally, there is a law enacted on October 16, 2002 entitled The Authorization for the Use of Military Force against Iraq Resolution of 2002. It has since been renamed simply “the Iraq Resolution.”

It gave many reasons, such as the following, to justify hurting the Iraqi people. I am quoting Wikipedia; the numbering is mine:

  1. Iraq’s noncompliance with the conditions of the 1991 ceasefire agreement, including interference with U.N. weapons inspectors.
  2. Iraq “continuing to possess and develop a significant chemical and biological weapons capability” and “actively seeking a nuclear weapons capability” posed a “threat to the national security of the United States and international peace and security in the Persian Gulf region.”
  3. Iraq’s “brutal repression of its civilian population.”
  4. Iraq’s “capability and willingness to use weapons of mass destruction against other nations and its own people.”
  5. Iraq’s hostility towards the United States as demonstrated by the 1993 assassination attempt on former President George H. W. Bush and firing on coalition aircraft enforcing the no-fly zones following the 1991 Gulf War.
  6. Members of al-Qaeda, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq.

Context

Everyone knows that mush of what the US government has done in the 21st century is chalked up to the influence of “Nine-Eleven.” But by this point, sixteen years later, most people realize that 9/11 was a false-flag operation. It was not perpetrated by 19 Arab hijackers – that is a myth. It was a hugely sophisticated operation involving the controlled demolition of three skyscrapers in New York during business hours.

The Port Authority had leased the twin towers to Larry Silverstein and Frank Lowy a mere six weeks before the blast. Vice President Cheney had, in May, given himself the role – odd for a VP – of deciding when jets would be sent up in case of an invasion. None were sent. The Secret Service broke all its rules about hastening to protect the president in emergencies. All of these peculiarities, and many more, cannot be laid to coincidence or negligence.

Also we citizens did not know, at the time of the 2003 invasion of Iraq by the US, that the Pentagon had made a list, in 2001, of seven countries to be destroyed in 5 years. They are: Iraq, Lebanon, Libya, Sudan, Somalia, Syria, “and finishing off with Iran.” (No need to list Afghanistan as the US was already there in 2001, less than a month after “Osama bin Laden” masterminded 9/11.)

All of the listed countries have now been destroyed on one pretext or another. This brings us to the media hype about Syria having harmed its people with chemical weapons – an old chestnut, right? – and Iran having cruelly made a witch’s brew of nuclear weapons. Another chestnut.

Thus we need some help in making sure we do not proceed with the outrageous plan to finish off the last two of the seven countries that the Pentagon decided – with no input from Congress – to destroy.

Injunctive and Declaratory Relief

One does not know where to turn. To say it is frightening to learn that our own nation turns its weapons on its people is an understatement. I propose to ask the Court for help.

First, let’s mention injunctive relief. Injunctions are a dime a dozen. You can ask the court to enjoin your neighbor from chopping down the tree on the border between his land and yours. You can ask the court to enjoin a publisher from selling a book if you see that the author has plagiarized your work.

Courts are very much in the business of stopping someone from doing what they are not supposed to be doing. An injunction does not ultimately settle the issue – for example, the aggrieved author may still have to go to court to win a settlement for the plagiarism. But it prevents a terrible thing from happening.

Most of the 21 cases that asked courts to deal with the “no violation of Article I, section 8, Clause 11, please” did so by asking for an injunction against the unlawful war-making.

Second let’s look at declaratory relief. Here one asks the court to declare what the law says. It is often used where the issue is already past the point where something can be stopped. One asks the court to say who was right and who was wrong, legally.

US courts do not give advisory opinions. You can’t just ask “Hey, Court, is date rape, rape?” You have to fulfil the same criteria as persons who are bringing lawsuits for compensation.

I hope someone in the near future will file for declaratory relief in the matter of the illegality of the threatened strikes on Syria and Iran without Congressional say-so.

If you are American and wish to be a plaintiff, please let me know. You can go “pro se,” without a lawyer. The federal courts charge $400 for filing a case. The price of a good haircut.

 

–Mary Maxwell is GumshoeNews’ assistant editor. Her favorite question is ”Why not?”

 

Photo Credit: Corbis

 

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25 COMMENTS

  1. “All of the listed countries have now been destroyed on one pretext or another. This brings us to the media hype about Syria having harmed its people with chemical weapons – an old chestnut, right?”

    Speaking of old chestnuts – and they are not about to let up any time soon …

    SYRIANGIRL (Maram Susli) sums it up with such insight:

    1. Bannon’s departure means no one in the WH opposes US / Israeli escalation.
    2. A recent video and photo showing Syrian insurgents teaching school children how to act like chemical weapons victims.
    3. A fake news story in Reuters claiming the UN intercepted a North Korean shipment of chemicals to Syria.
    4. An article in the Daily Beast, (another notorious alphabet agency / neocon lie factory – tying in Iran with Syria and North Korea.
    5. A tweet from Nikki Haley, saying that the US will shoot first and ask questions later if any chemical weapons are used in the area, and a WH statement reminding people that Syria used chemical weapons in 2014. (Which has since been proved untrue) – suggesting an upcoming false flag.
    6. Netanyahu’s trip to Moscow where he told Putin he would prefer for ISIS to win over Syria and Iran and would attack Syria to prevent that from happening.
    7. Syria’s impending victory in Deir Ezzor puts the US in a position where they would have to attack in order to salvage their rapidly collapsing MIddle East policy.

    Featured here …
    • http://russia-insider.com/en/military/syriangirl-clues-suggest-us-or-israeli-attack-syria-could-happen-soon/ri20785

    … and if only Australia had people of such integrity and intelligence as Maria Zhakarova in our Foreign Ministry
    • https://sputniknews.com/middleeast/201708311056960352-moscow-daraa-chemical-weapons/

    • Thanks, Fish, (I don’t understand number 6).

      Here is an item from Loufisher.org that Lou wrote in 2013: as
      “Holding Assad Accountable,”

      President Obama’s effort to build a case for military operations against Syria was undermined by statements he and other administration officials made. They described the plan to send cruise missiles into Damascus as limited, tailored, surgical, and proportional, greatly downplaying the level of violence that would result. Many lawmakers and their constituents objected to this word play and found the administration’s explanation to be misleading and deceptive. One of the few to speak plainly about military consequences was General Martin E. Dempsey, chairman of the Joint Chiefs of Staff.

  3. Very sorry – big error. I said that Elizabeth Holzman and airmen

    “judge-shopped and approached Justice William Black.
    He was about to grant their request and order a halt to any such bombing – like a restraining order. However, Justice Thurgood Marshall nixed it, causing Black to refer to him as spaghetti spine.”

    I really meant William O Douglas, Dee, please go to that bit and change the name “Black” to “Douglas”, twice. Thanks.
    ‘

    And what is worse, I have my facts wrong — if Wikipedia (CIA) is to be believed, and I do think they are very careful about such details. I had said that Elizabeth went to Douglas first and then Thurgood nixed it. Wikipedia says she went to Thurgood first (I assume as a single judge during summer recess), and he would not play ball. So she went to Douglas who ordered the military to stop bombing Cambodia. But “the military did not obey this.”

    I know it is no excuse that I am writing on the road with none of my books handy, and only a half-baked Wi-fi.
    I think I got the spaghetti spine story right, though, as you don’t tend to forget a phrase like that.

    • Thank you, Spec. the video is a killer. And I am crushed that Jeff Sessions said this to the Fraternal Order of Police:

      “The executive order the president will sign today will ensure that you can get the lifesaving gear that you need to do your job and send a strong message that we will not allow criminal activity, violence and lawlessness to become the new normal,” Sessions said.

      I hoped Atty Gen Sessions was going to be a defender of the Constitution. It is really shocking. He refers to “the gear that you need to do your job.” It includes BAYONETS.

      Has he bought into the idea that police need to become fascist oppressors? What for?

      • At 13 mins the cop says to the nurse “You’re obstructing justice.”

        Earlier she said “I have an obligation to my patients.”

        I heart this girl.

        At 15 he says “Your policy is contravening what I need.”

        He refers to the nurse as having said No no no no no no no.

        (that’s 7 no’s). Thank God for video recording and the guy who recorded it.

        Anyway, now it’s good to know that we can get cops to arrest people on suspicion of obstruction of justice.

        Hey, coppers, you could even make a lotta overtime doing that. Sooo many suspects.

        • She wasn’t interfering with them getting the blood sample. She was simply stating the hospital’s policy. If they don’t like the policy, shouldn’t they go assault the hospital director or something?

          Oh, so the police department has an agreement with the hospital to abide by the policy. That’s good to know!

          If this request was legitimate, why wouldn’t the police just go get a warrant like they’re supposed to do in the first place. They’re lying and manipulative A-holes. This other officer tries to negotiate a way to get around the law on camera. He says, why are you involved in this??? He certainly seems to have things ass-backwards.

          I couldn’t tell what happened, whether the hospital people gave in to the police or what? (I was too curious — had to go and find the Salt Lake City article.) This article has information I didn’t get from the video plus the “conclusion.” http://www.sltrib.com/news/2017/08/31/utah-nurse-arrested-after-complying-with-hospital-policy-that-bars-taking-blood-from-unconscious-victim/

          Here’s an excerpt of what seems like a threat:

          “As he stands in the hospital parking lot after the arrest, Payne says to another officer that he wonders how this event will affect an off-duty job transporting patients for an ambulance company.

          “I’ll bring them all the transients and take good patients elsewhere,” Payne says.”

          All of these goings on that might seem like small things to some people are actually big deals because any issue that sets a precedent could become a problem for any of us at some point. And these videos show how police really seem to be “chomping at the bit” to have their full-on police state.

      • Are you really surprised Mary? They’re all bums who need to be thrown out. What Sessions was really saying is that they won’t allow any OTHER criminals to carry out violence, lawlessness, etc., and that they will stop at nothing to see that their fascist totalitarian state becomes the new normal. It would be a mistake to believe Trump is not a partner in that goal. Police are very important to this group because police are their first line of defense against the masses whom they consider to be their enemies (the ordinary people of the world). They’re working on dividing and conquering group by group, and with this “surplus” military equipment, they hope to step that up a notch or two.

        • As far as I know, if a driver who caused a road issue refuses to show his blood report, it can simply be taken as evidence that he is hiding incrimination. So the cop did not have to be so determined to get the sample.

          What I want to know is, did she wet her pants? That must have been an incredible surprise for a nurse to be attacked by police right there in the Emergency Room. (But she was non-hysterical when speaking to him in the car.). What a world.

          • The guy who caused the crash was killed. The guy they wanted the blood sample from was the victim.

            I don’t know about wetting her pants, but I’ll bet she cried some angry tears and won’t ever feel the same way about cops after she was assaulted by one. I’d guess there will be a lot of nurses who will have a less kindly view of cops after this. Just to make a nasty little play on the cop’s remarks that I excerpted from the newspaper article — I wonder how this will affect the level of care given by hospital staff when another officer is injured on the job.

          • Disclaimer: I’m not a hospital worker or medical worker of any kind so I have no control whatsoever over what sort of care anyone receives.

  5. The story below has a happy ending, sort of. The Utah District Atty is considering criminal charges against the police who arrested the nurse. (You know it’s not going to happen but it is a step up from where we were a few hours ago.)

    SALT LAKE CITY (AP) — A Utah nurse , Alex Wubbels, said she was scared to death when a police officer handcuffed and dragged her screaming from a hospital after she refused to allow blood to be drawn from an unconscious patient.

    The Salt Lake City police chief and mayor also apologized..
    Wubbels, a former alpine skier who competed in the 1998 and 2002 Winter Olympics, said she adhered to her training and hospital protocols to protect the rights of a patient who could not speak for himself. [The patient is also a cop!!]

    The dispute ended with Payne saying, “We’re done, you’re under arrest” and pulling her outside while she screamed and said, “I’ve done nothing wrong!”

    She has not sued, but that could change, said attorney Jake Macfarlane..

    “There’s a strong bond between fire, police and nurses because they all work together to help save lives, and this caused an unfortunate rift that we are hoping to repair immediately,” Judd said. [Oh Lord]

    • Wow! My first reaction is, “Good luck with that.” But then I just hope the mayor, chief of police, and other officials are being sincere and are not just trying to gloss over the situation. The cynical part of me says they’d just like to make it disappear as quickly as possible because the videos probably went far and wide, many people beyond Utah have seen the local police acting like morons, and the officials are embarrassed, but most of all because the higher ups don’t want to be sued. It definitely could have been much worse. This is probably as “happy” an ending as we could have imagined.

      • Huffpost headline “Officer who arrested nurse is under criminal investigation”
        Not true. Later in the article it says:

        “Salt Lake City Mayor Jackie Biskupski and Police Chief Mike Brown apologized for Payne’s actions and promised investigations from Internal Affairs and the Civilian Review Board.” — That is not a crim investigation.

        Whitewash city.

        • Yup. Thanks for the update.

          When police either don’t know the law or don’t care about the law and act like overgrown two-year-olds — and their supervisors encourage them to bully/frighten/manipulate people into giving them what they want, that’s a public hazard. It’s a menace.

          I’m curious about the “new policy” the police have created apparently having to do with situations like this one. Did they make their new policy agree with what it should have already stated according to their agreement with the hospital, are they trying to change that agreement, or what? It wasn’t stated in what I read.

          It all seems so stupid. This guy they wanted blood from was the victim of the accident. He was not under arrest or even suspected of doing anything wrong. Yet the police were bound and determined to have his blood sample. Why? So they could take it somewhere and get the results they wanted that showed the victim was intoxicated? Would they have been able to squeeze more money out of the public if they could show that a certain amount of people were driving drunk and getting into traffic accidents or what? Or is it just that more crime justifies more cops and equipment and greater danger gets them higher pay?

          So, as usual, the officer gets a paid vacation at the taxpayers’ expense. (He was, according to the latest article I read, acting according to his supervisor’s direction when he arrested the nurse.) He’ll go back to work and the cops will find more covert ways to misbehave and lobbyists will go to work trying to get laws changed so that cops can “do their job” and “protect public safety.” What a racket!

        • I just heard that this incident actually happened in July. Nothing was done until the nurse released her videos. NOW the city and the police department are all apologetic, etc., etc.

  6. Progress, absolute progress.
    I assumed Chris Bollyn did it the way I do it (the stupid way) : renting a room in a library to give a talk but without involving the library.

    No. If you go to the official website of Watertown Public Library (M’assachusetts) you will find him being treated as a book author:

    Room: Watertown Savings Bank Meeting Room
    Purpose:
    Christopher Bollyn, the author of The War on Terror: The Plot to Rule the Middle East, will discuss the origin of the war, its relationship to 9/11, and the strategic plan behind it.

    Public Contact Information: endfed@gmail.com
    Date: Thursday, September 7, 2017 – 6:30pm to 8:45pm

    Lookie! He gets 2 hours and fifteen minutes.

    • Well, well, well. My book, “Deliverance!: A Royal Commission and Pizzagate Reveal Society’s Hidden Rulers,”
      is now on the shelf at Australian National Library and therefore is also catalogued at Worldcat.org.

      Guess it’s time for a book tour to every library in M’assachusetts. To which we can also throw in “Marathon Bombing: Indicting the Players.” Oh my.

      And a lecture tour of law schools with “Fraud Upon the Court.” WHY NOT?

      Oops, maybe I should attend the Chris Bollyn one first and see if there any police there arresting nurses, librarians, etc.

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