Federal Judge Hears Challenge to Iraq War

by David Porter

    Opponents of the Iraq war are leaning on an unlikely source to bolster their efforts to declare the invasion unconstitutional: Supreme Court Justice Antonin Scalia.

    In arguments Tuesday in federal court in Newark, attorneys for an Iraq war veteran and two New Jersey mothers of soldiers cited the conservative justice.

    They pointed to his strict interpretation of the Constitution in a decision last year that affirmed the right of homeowners to own guns for self-defense.

    "It’s all about the original intent of the founders," said Frank Askin, a law professor at Rutgers University-Newark who argued for the plaintiffs.

    The lawsuit filed last May claims that, despite being authorized by Congress in fall 2002 to deploy armed forces against Iraq as he deemed necessary, President George W. Bush overstepped his constitutional authority by invading the country six months later without formally declaring war.

    The suit does not seek to influence current policy in Iraq but instead aims to set a precedent for future conflicts.

    Tuesday’s arguments in front of U.S. District Judge Jose L. Linares were in response to the U.S. government’s motion to dismiss the lawsuit on the grounds that the courts do not have jurisdiction to rule on what is essentially a political matter.

    "What you had was a cooperative action between two political branches that is not subject to judicial intervention," Justice Department attorney Jeffrey Smith argued.

    Askin and attorney Bennet Zurofsky, also arguing for the plaintiffs, repeatedly invoked the Founding Fathers’ insistence on, in Thomas Jefferson’s words, "chaining the dog of war" by prohibiting a president from taking the nation to war unilaterally.

    They referred to a June 2008 opinion in which Scalia wrote that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

    Both men expressed hope that that approach would strengthen their argument.

    "The Supreme Court in the 19th century was very clear that only Congress could declare war," Askin said. "The 20th century cases are very murky. This is about what the founders intended, and you have to look at judges that were most extemporaneous to the Constitution."

    Askin acknowledged that Congress historically has authorized the use of military force in limited conflicts where there was no declaration of war, but he differentiated those examples from the invasion of Iraq.

    "So, what you’re saying is that we have to draw the line at invasion?" Linares asked.

    "Absolutely," Askin replied.

    The courts have the right to step in if a president "usurps the power of another branch," Askin said.

    "It is up to Congress to make the choice to go to war, not delegate it to the president," he said. "Congress abdicated its responsibility."

    There’s no word when the judge will rule on whether the lawsuit can continue.