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[Dalek]

An Army Captain Takes Obama to Court Over ISIS Fight

WASHINGTON — A 28-year-old Army officer on Wednesday sued President Obama over the legality of the war against the Islamic State, setting up a test of Mr. Obama’s disputed claim that he needs no new legal authority from Congress to order the military to wage that deepening mission.

The plaintiff, Capt. Nathan Michael Smith, an intelligence officer stationed in Kuwait, voiced strong support for fighting the Islamic State but, citing his “conscience” and his vow to uphold the Constitution, he said he believed that the mission lacked proper authorization from Congress.

“To honor my oath, I am asking the court to tell the president that he must get proper authority from Congress, under the War Powers Resolution, to wage the war against ISIS in Iraq and Syria,” he wrote.

The legal challenge comes after the death of the third American service member fighting the Islamic State and as Mr. Obama has decided to significantly expand the number of Special Operations ground troops he has deployed to Syria aid rebels there.

Mr. Obama has argued that he already has the authority he needs to wage the conflict against the Islamic State under the authorization to fight the perpetrators of the terrorist attacks of Sept. 11, 2001, enacted by Congress shortly after the attacks.

That argument is controversial because the Islamic State is at odds with the leadership of Al Qaeda and its affiliate in Syria, the Nusra Front. Critics contend that the administration is stretching the Sept. 11 authorization too far by applying it to an organization that did not exist in 2001 and that operates far from Afghanistan.

The administration has countered that its position is legitimate because the Islamic State used to be a Qaeda affiliate in Iraq during the Iraq war. In an April 2015 speech, Stephen Preston, then the top Pentagon lawyer, argued that the fact that Al Qaeda splintered after the death of Osama bin Laden did not mean that the authority to keep fighting each successor faction came to an end.

Administration officials have also said the fight against the Islamic State is covered separately by the 2002 authorization President George W. Bush obtained from Congress for the invasion of Iraq, although they are not relying on it.

Jack Goldsmith, a Harvard Law School professor who has criticized the administration’s use of the 2001 war authorization to cover the Islamic State but is not involved in the suit, said the case was significant because it could overcome a major hurdle to getting a court to review that theory.

But Mr. Goldsmith said Captain Smith faced many other hurdles, including precedents that suggest that when Congress appropriates money for a conflict it has implicitly authorized it. He also predicted that if a court did rule that the conflict was illegal, Congress would authorize the fight to continue – perhaps giving it broader scope than Mr. Obama has wanted.

“We’re in a terrible equilibrium where Congress doesn’t want to step up and play its part in this military campaign and so the president has basically gone forward and done what he thinks he needs to do,” Mr. Goldsmith said. “It would be a lot better for everyone, including the president, if Congress got more involved.”