See Latest Court Filings (pdf file) (doc file)

CONTACTS:

Justin Kazmark (646) 495-4960
justin@andymorrisandcompany.com
Andy Morris (646) 495-4958
andy@andymorrisandcompany.com
John Bonifaz (attorney), (617) 524-2675 or (617) 529-4611 (cell)
Charles Richardson and Nancy Lessin (parent plaintiffs),
(617) 522-9323, (617) 320-5301 (cell), (508) 277-9466 (cell)

DATE: March 17, 2003

FOR RELEASE Immediate

COURT CHALLENGE TO BUSH STILL ALIVE

Last WeekÍs Court of Appeals Ruling Opens Door To Judicial Intervention In War Against Iraq

-- Plaintiffs Resubmitting Suit Today Because Conditions Are ñRipeî --

Boston Æ The lawsuit filed by active-duty U.S. soldiers, parents of U.S. soldiers and 12 Members of Congress to prevent the President from waging war against Iraq without a formal Declaration of War by Congress will resubmit the case today. The case will again go before the same three-judge panel of the First U.S. Circuit Court of Appeals that dismissed the case on Thursday last week on ñripenessî grounds Æ essentially saying the timing was not right for it to get involved.

ñThe case is very much alive,î said John Bonifaz, lead attorney for the plaintiffs. ñWe are not going to wait until the bombs fall. If the President moves us closer to war without U.N. authorization, this case will be ripe for the courtÍs review and will demand judicial intervention to prevent an unjust and unconstitutional war.î

While the Doe v. Bush case was dismissed by a federal appeals court on Thursday, the three-judge panel gave the plaintiffs a ñpartial victoryî by making it clear they would be open to looking at the issues again should President Bush order an invasion of Iraq without the authorization of the United Nations. The lawsuit challenges the PresidentÍs authority to wage war in Iraq without a Congressional Declaration of War, as required by the Constitution in Article I, Section 8.

This case should be of ñmajor concernî to the Bush Administration and could slow the timing for an invasion of Iraq should President Bush try to proceed without the authorization of the United Nations, said law professors who studied the 30-page opinion Friday.

ñThe First Circuit Court decision is important precisely because it turns on the ripeness of the claim. The court gives every indication that it is taking the plaintiffsÍ case seriously but that are not yet ready for adjudication. The court leaves open for consideration whether the President actually has power to declare war absent specific Congressional action. It is interesting that they did not find that the plaintiff lacked standing or that the whole case is a political question. Rather, the court emphasized that it is not ripe so the wheel is still very much in spin,î said Jamin Raskin, a law professor at the Washington College of Law at American University in Washington, D.C.

If the court were then to grant the request for an injunction preventing the President from invading Iraq absent further action by Congress, the issue will be thrown to Congress to vote up or down on whether to go to war without U.N. authorization. Such a decision could delay the start of the war or even force the Bush Administration to wait until it has U.N. backing, should that be the decision of the Congress.

The fact the lawsuit is still alive hinges on an understanding of certain esoteric legal doctrines. The appeals court could have dismissed the case on ñpolitical questionî grounds, as the lower trial court had. This means that the issues are so political that they would be best left to the legislative and executive branches of government. If the case had been dismissed on these ñpolitical questionî grounds, it would have essentially killed the lawsuit.

ñAccording to ThursdayÍs opinion, the Plaintiffs' claim will be ripe for hearing as soon as it becomes clear ïthat the Security Council will not authorize war, and that the President will proceed nonetheless.Í Today we seem to have arrived at that situation. If the president wants to proceed to war without U.N. approval, and without being delayed by proceedings in a federal court, he would be well-advised to obtain Congress' authorization of an attack on Iraq,î said Nancy Lessin, one of the parent plaintiffs in the case.

Those suing include a coalition of U.S. soldiers, parents of U.S. soldiers from seven states, and 12 congress people. Two weeks ago, the group won a rare expedited review by the First Circuit Court of Appeals in Boston of a lower-court dismissal. The lawsuit was originally filed on February 13. The lead plaintiffs 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.

Page created March 10, 2003 by Charlie Jenks