March 11, 2003

CONTACTS:

Carol Klenfner (646) 495-4978 carol@andymorrisandcompany.com
Andy Morris (646) 495-4958 andy@andymorrisandcompany.com
John Bonifaz, (617) 524-2675 or (617) 529-4611 (cell)
Charles Richardson and Nancy Lessin, (617) 522-9323, (617) 320-5301 (cell), (508) 277-9466 (cell)

Appeals Court Revives Members' Suit to Stop War

March 10, 2003 By Damon Chappie, Roll Call Staff

Acting with surprising speed, a federal appeals court in Boston has revived a lawsuit seeking to block President Bush from launching an attack against Iraq without a formal declaration of war approved by Congress.

The constitutional challenge - filed by a dozen House Democrats and a number of military members and their families - was dismissed Feb. 24 by a lower-court judge who ruled that the dispute was not an issue to be settled in the courts.

But in a rare move that signaled heightened interest in the matter, a three-judge panel of the 1st Circuit Court of Appeals granted an emergency motion to hear an appeal of the lower-court ruling with an expedited argument and briefing schedule. An emergency hearing was held last week and the panel asked for both sides to submit briefs in the case by Tuesday, indicating that it would issue a ruling quickly.

The panel is made up of two judges appointed by former President George H.W. Bush and a third judge appointed by former President Bill Clinton.

Normally, such appeals can take months to reach the ears of appellate judges. While the plaintiffs are fighting an uphill battle to win judicial intervention in an area of law that courts have traditionally avoided, the quick action of the appellate judges could indicate a renewed judicial interest in a question deeply rooted in the Constitution.

A judicial voice on the question of war may have an unexpected impact on the political discussion that appears to be reaching a climax. A decision in December 1990 by U.S. District Judge Harold Greene that dismissed a challenge to the pending Persian Gulf War by 54 Members of Congress nonetheless electrified the debate because the judge ruled that only Congress could declare war.

"The court is not prepared to read out of the Constitution the clause granting to Congress, and to it alone, the authority 'to declare war,'" Greene wrote in his 1990 decision that neither side appealed.

Now, faced with another military confrontation in Iraq more than a decade later, a smaller group of House Democrats is again asking the courts to intervene before the United States launches a pre-emptive strike against a sovereign nation in a case that appears to be carefully tailored to withstand arguments that the plaintiffs lack standing or that the issue is not ripe for judicial review.

"Courts only very rarely manifest the high level of interest reflected in this kind of rapid-fire briefing and argument," said Charles Tiefer, a constitutional law expert at the University of Baltimore and a former House deputy general counsel. "The judges of the First Circuit must take their responsibility in this war-powers case quite seriously to formally set up this swift but elaborate arrangement for dealing with the appeal."

John Bonifaz, the attorney who is seeking the injunction against Bush and Defense Secretary Donald Rumsfeld, said in an interview Friday that he expects the court to rule quickly given the military buildup outside Iraq and statements by Bush that indicate the conflict is set to begin within days.

"They are taking this case seriously at this extraordinary moment in history," Bonifaz said. "They recognize the urgency, and their questioning of both sides demonstrated that they are engaged in this case and they recognize the gravity of what is at stake."

Bonifaz, a 36-year-old Harvard Law School graduate who is the recipient of a MacArthur Foundation genius grant, typically deals with cases regarding campaign finance and voting rights as founder of the National Voting Rights Institute. But he is now arguing on behalf of a number of unidentified active duty military personnel and a group of lawmakers, led by Democratic Reps. John Conyers (Mich.) and Dennis Kucinich (Ohio), who object to participating in an undeclared war.

Justice Department lawyers offered a menu of reasons for throwing the case out, arguing that the courts have no role in overseeing war powers that are handled by the other two branches of government.

Justice Department attorney Gregory Katsas told the panel that Congress has declared war just five times while the military has engaged in acts of war more than 100 times in the nation's history. And, he argued, if Congress disapproved of the war, it could simply stop spending money to support the war actions.

But Bonifaz argued that Congress has abrogated its duty and responsibility to decide whether the nation should go to war and that the court must step in to correct a usurpation of power by the president.

"Article I, Section 8 of the Constitution is quite clear that Congress, and only Congress, shall have the power to declare war. The president is not a king. He cannot wage war against another country without Congress first deciding to send the nation to war," Bonifaz said.

Bonifaz contended the resolution passed last October by Congress unlawfully ceded to the president Congressional powers to declare war. "Congress can no more transfer its power to declare war to the president than it can transfer its power to levy taxes or appropriate money. There are certain non-delegable powers under the Constitution that cannot be transferred to the president."

And in a situation where Congress has collaborated with the executive branch to abandon its constitutional duty, the judiciary "must step in and uphold and protect the Constitution. If the court finds that it cannot intervene in this matter, then we might as well write Article I, Section 8 out of the Constitution. It will effectively have no meaning."

Copyright 2003 © Roll Call Inc. All rights reserved.

CONTACTS:

Carol Klenfner (646) 495-4978 carol@andymorrisandcompany.com

Andy Morris (646) 495-4958 andy@andymorrisandcompany.com

John Bonifaz, (617) 524-2675 or (617) 529-4611 (cell)

Charles Richardson and Nancy Lessin, (617) 522-9323, (617) 320-5301 (cell), (508) 277-9466 (cell)

February 26, 2003

Court Challenge to Bush Heats Upƒ

U.S. SOLDIERS, PARENTS OF SOLDIERS AND 12 CONGRESS PEOPLE WIN FAST REVIEW OF SUIT CHALLENGING BUSH'S AUTHORITY TO WAGE WAR AGAINST IRAQ (See Feb 25 Boston Globe article on Federal District Court dismissal of case.)

PLAINTIFFS SAY INVASION WILL VIOLATE CONSTITUTION: "THE PRESIDENT IS NOT KING"

-- HEARING BEFORE THREE-JUDGE PANEL SET FOR TUESDAY, MARCH 4 --

DOE V BUSH SEEKS TO BAR BUSH FROM STARTING WAR ABSENT CONGRESSIONAL DECLARATION

BOSTON - A coalition of U.S. soldiers, parents of U.S. soldiers from seven states and a dozen U.S. congress people won a rare expedited review by a federal appeals court in Boston of a lawsuit challenging President George W. Bush's authority to wage war against Iraq.

The order, issued Tuesday, February 25 by the U.S. Court of Appeals for the First Circuit in Boston, came less than 24 hours after a federal judge had dismissed the case. The plaintiffs had appealed the ruling by Federal Judge Joseph Tauro and had filed a motion for expedited review before the appellate court.

The appellate court granted that motion yesterday and scheduled oral argument before a three-judge panel for Tuesday, March 4. The lawsuit seeks to prevent the President from ordering troops into Iraq until Congress formally declares war.

A three-judge panel of the U.S. Court of Appeals for the First Circuit will hold oral argument on the plaintiffs' appeal on Tuesday, March 4, at 9 a.m., at the U.S. Courthouse, 1 Courthouse Way, Boston.

"We are pleased that the federal appeals court recognizes that this case deserves immediate review," says John Bonifaz, the plaintiffs' lead attorney. "Judicial intervention is needed to ensure that the President adheres to the Constitution before ordering troops into Iraq in what would be an illegal and unconstitutional war without a formal Congressional declaration."

The coalition of U.S. soldiers, parents of U.S. soldiers, and Members of Congress filed the lawsuit on February 13, 2003, in federal district court in Boston seeking an injunction to prevent the President from launching a military invasion of Iraq, absent a congressional declaration of war.

U.S. Representatives John Conyers and Dennis Kucinich are leading the Members of Congress who are serving as plaintiffs. On February 21, 2003, six Members of Congress added their names to the lawsuit, doubling the number of congressional plaintiffs suing the President, and nine parents of U.S. soldiers also joined the case.

The original congressional plaintiffs are: Rep. John Conyers (MI-14); Rep. Dennis Kucinich (OH-10); Rep. Jesse Jackson, Jr. (IL-2); Rep Sheila Jackson Lee (TX-18); Rep. Jim McDermott (WA-7); and Rep. Jose E. Serrano (NY-16).

The additional Members of Congress who joined the lawsuit are: Rep. Danny K. Davis (IL-7); Rep. Maurice D. Hinchey (NY-26); Rep. Carolyn Kilpatrick (MI-15); Rep. Pete Stark (CA-13); Rep. Diane Watson (CA-32); and Rep. Lynn C. Woolsey (CA-6).

The parents in the case are from California, Michigan, Mississippi, Massachusetts, Illinois, New York, Washington State, and the District of Columbia.

The lead plaintiffs in the case are three U.S. soldiers, including a Marine currently stationed in the Persian Gulf.

The U.S. Justice Department is representing President Bush and Defense Secretary Donald Rumsfeld, the named defendants in the case.

The plaintiffs say an invasion will violate Article I, Section 8 of the United States Constitution, which states that "Congress shall have Powerƒ[t]o declare War." They argue that the resolution on Iraq that Congress passed last October did not declare war and unlawfully ceded to the President the decision of whether or not to send this nation into war.

Their court papers cite historical records showing that the framers of the Constitution sought to ensure that U.S. presidents would not have the power of European monarchs of the past to wage war.

"The President is not a king," says Charles Richardson, a plaintiff in the case whose son is a U.S. Marine now stationed in the Persian Gulf. "If he wants to launch a military invasion against Iraq, he must first seek a declaration of war from the United States Congress. Our Constitution demands nothing less."

Richardson, along with Nancy Lessin and Jeffrey McKenzie who are plaintiffs in this case, is a co-founder of Military Families Speak Out, an organization of people who are opposed to war against Iraq and who have family members in the military. Lessin adds: "A full and complete Congressional discussion of the issues and all options must precede any move towards war, because of the irreparable harm that would result."

"President Bush recently told journalists that whether we go to war 'is not up to you, it's up to me,'" says Representative John Conyers. "The Founding Fathers did not establish an imperial presidency with war-making power. The Constitution clearly reserves that for Congress."

HOW DOE V BUSH DIFFERS FROM OTHER SUITS CHALLENGING PRESIDENTIAL AUTHORITY TO WAGE WAR:

The plaintiffs argue that their case is distinguishable from the Vietnam War cases and the case brought prior to the first Persian Gulf War. They point out that the cases challenging the executive branch's authority to wage war in Vietnam were brought long after that war had started.

By the time the courts heard those cases, the U.S. Congress had passed a series of military appropriations financing the war and had passed legislation extending the military draft. Presently, Congress has not passed any military appropriations to finance an invasion of Iraq and has not reinstated the draft.

In the case brought in 1990 by Members of Congress challenging the authority of President Bush's father to wage the first Persian Gulf War, the court ruled, contrary to Judge Tauro's ruling on Monday, that the matter was not a political question and could be subject to judicial review. However, in that case, the court denied the requested injunction solely on the grounds that war did not appear imminent at that time.

The Doe v Bush plaintiffs point out that, according to the President and Defense Secretary Rumsfeld, the nation is weeks, if not days, away from a military invasion of Iraq. They argue that their case is far more ripe than the 1990 case. They further argue that U.S. special operations forces are already in Iraq, laying the groundwork for a massive military invasion.

CONTACTS: Carol Klenfner (646) 495-4978 carol@andymorrisandcompany.com

Andy Morris (646) 495-4958 andy@andymorrisandcompany.com

John Bonifaz, (617) 524-2675 or (617) 529-4611 (cell)

Charles Richardson and Nancy Lessin, (617) 522-9323, (617) 320-5301 (cell), (508) 277-9466 (cell)

Page created February 28, 2003 by Charlie Jenks.