An Unconstitutional War? A Primer and A Question: Should Lawyers Speak Out?

For all the talk about the U.S. response to ISIS, including criticism of the Obama administration’s strategy or alleged lack thereof, there is very little mention of the fact that the war on ISIS is most likely unconstitutional. Trevor Timm of The Guardain has written an excellent opinion piece entitled, “President Obama’s speech reminded Americans that the war with ISIS is still illegal.” If you are interested in an introduction to the issue, Timm’s op ed piece is a good place to start. His piece includes links to the opinions of constitutional scholars across the political spectrum, to an article about Connecticut Senator Chris Murphy who has called for Congressional action, and to an outline of proposed war resolution against ISIS.

After the attacks in Paris the British Parliament, following a vigorous debate, voted to commence air strikes on ISIS. Why do President Obama and the Congress refuse to address the issue of the war’s constitutionality? What are the consequences of their refusal? As Timm notes:

But any decision – or indecision– could have significant consequences beyond 2016: Republican front runner Donald Trump has boasted he would “bomb the shit out of Isis” and, disturbingly, said the US military should kill their families as well. Ted Cruz bragged he would “carpet bomb” the Middle East. And, if you take away the rhetorical flourishes, it’s hard to tell how Hillary Clinton’s policy on Isis is any less hawkish than the Republicans.

There is no more important constitutional decision than the decision to go to war. In the absence of Congressional action, there is a serious risk that the executive branch will engage in military actions that the country does not support. It is hard to imagine prosecuting, much less winning, a war that a majority of the country does not support. And yet here we are arguably at war without Congressional authorization. Where are the leaders? For political reasons are they hiding? The British Parliament had the leadership and the courage to debate and decide. What does it say about our government that it does not?

Do lawyers have a professional opportunity to speak out about this issue? The Preamble to Connecticut’s Rules of Professional Conduct provide in part:

As a public citizen, a lawyer should seek
improvement of the law, access to the legal system,
the administration of justice and the quality
of service rendered by the legal profession.

One could argue that because of the reluctance of the President and Congress to put the war issue before Congress, the public is being denied access to the legal system for deciding questions of war and peace, and that lawyers should seek improvement of the law and access to the legal system by speaking out about the need for Congressional action. As it is, it appears that electoral politics, the desire not to expose oneself to the risk of being defeated at the polls, is deemed to be of greater significance than the Constitutional command that Congress debate and act on the question of whether the United States should be at war in the Middle East. Lawyers may wish to consider raising this issue in their communities, explaining the role that Congress ought to be playing and the consequences of its failure to do so.