A judge in the US District Court of New Jersey dismissed a lawsuit May 19 brought by the Constitutional Litigation Clinic at the Rutgers School of Law alleging that former president George W. Bush violated Congress’s constitutional power to declare war by initiating a preemptive war against the nation of Iraq.
Granting the government’s motion to dismiss the suit for lack of jurisdiction, Judge Jose Linares found that the issue should be resolved by the government’s political branches:
Rather than leaving to Congress the issue of whether to declare war and thereby invoke various corresponding obligations, Plaintiff’s would have this Court second-guess Congress’s decision to authorize something short of “war.” This is plainly not the judiciary’s role. … Congress is fully-equipped to analyze the treaties, policy considerations, and accompanying obligations that would follow from a declaration of war and to choose a separate path accordingly. The fact that the United States is engaged in military action absent a declaration of war does not automatically invite the judiciary’s analysis as to whether that action is “constitutionally sanctioned.”
Linares also found that the plaintiffs, New Jersey Peace Action and three private citizens, did not have standing under Article III of the Constitution to challenge the validity of the invasion of Iraq.
The suit was filed last May, seeking a declaratory judgment of the war’s illegality. In July, the National War Powers Consortium, headed by former secretaries of state James Baker and Warren Christopher, released a report calling for a new law requiring the president to consult with Congress before going to war. In April 2008, the Law Lords, Britain’s highest court, denied a similar request by two mothers of soldiers killed in Iraq for a public inquiry into the legality of UK’s decision to go to war in Iraq. (Jurist, May 20)
See our last post on Iraq.