Asking a Federal Court to declare the Iraq war unconstitutional

NEWARK, N.J. — Attorneys representing a veteran and two mothers of soldiers are asking a federal court to declare the Iraq war unconstitutional.

They are doing so not for compensation but "in order to focus their case upon seeking the more important relief for the entire nation - an adjudication that the Constitution has been violated and that the People and, indeed, our Nation as a whole,have all been damaged as a result. It will be sufficient remedy for these plaintiffs if this Court rules directly upon the plain language and the original intention of the Constitution and thereby fulfills the Court’s primary responsibility, first articulated by Chief Justice Marshall, “to say what the law is.” Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 177."

They said in court Tuesday that former President George W. Bush overstepped his constitutional authority to invade Iraq in 2003 without Congress officially declaring war.

It is a constitutional duty not to launch a war against a foreign sovereign state in the absence of a formal Congressional Declaration of War, a breach of that duty insofar as Iraq was invaded without such a Declaration of War, and injuries proximately caused by that breach that are of
types that are cognizable and redressable by the court.

They say that wasn't the intent of the country's "founding fathers" who wrote the constitution more than 200 years ago.

It is a constitutional duty not to launch a war against a foreign sovereign state in the absence of a formal Congressional Declaration of War, a breach of that duty insofar as Iraq was invaded without such a Declaration of War, and injuries proximately caused by that breach that are of
types that are cognizable and redressable by the court.



Thomas Jefferson, while serving as Ambassador to France, wrote James Madison praising the Convention for creating “an effectual check to the Dog of War by transferring the power of letting it loose from Executive to Legislative body, from those who are to spend to those who are to pay.”



Alexander Hamilton had warned that: “Men love power”. Experience with the failed Articles of Confederation taught the Framers that “men loved power,” as Alexander Hamilton told the Convention on June 18. Thus, they adopted Montesquieu’s analysis that power must be checked by other power. The framers knew personal ambition animated people to become political figures and to exercise power of their positions. Fear that presidential ambition would shape national policy permeated the Constitutional Convention.35 Alexander Hamilton was especially concerned about presidential power. An intensely ambitious man himself, he understood how ambitious leaders created wars.


The government argued that courts do not have authority to rule on a political matter.

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WASHINGTON - April 21 - WHAT: The constitutionality of the occupation of Iraq will be the subject of a Federal hearing.

WHEN: 11:00 AM Eastern, Tuesday, April 21, 2009.

WHERE: Newark, New Jersey Federal District Court, 50 Walnut Street, Newark, NJ, Room #4105

WHO: Rutgers Professor Frank Askin, Director of the law school's Constitutional Litigation Clinic at Rutgers School of Law-Newark, and Bennet Zurofsky, Newark attorney who is general Counsel of New Jersey Peace Action, will appear on behalf of the plaintiffs to challenge the legality of the invasion of Iraq without a Congressional Declaration of War. The plaintiffs are New Jersey Peace Action, an affiliate of the nation's largest non-profit peace organization, Peace Action; an Iraq war veteran; and two New Jersey mothers, members of Military Families Speak Out, whose sons were deployed in Iraq.

BACKGROUND: "The current war in Iraq began in a highly questionable way when the Congress ceded its authority to declare war to the president. The U.S. is now dropping bombs from unmanned drones onto Pakistan, killing civilians, without war ever against Pakistan ever being declared by Congress. It is time for the courts to issue a ruling on the constitutionality of this practice so we can avoid making such foreign policy mistakes in the future and so the people can hold their congressional representatives accountable for past mistakes," said Madelyn Hoffman, Executive Director of NJ Peace Action. She also notes that Obama's Department of Justice have simply adopted the Bush Department of Justice motion instead of withdrawing or at least modifying its positions. The April 21 hearing before U.S. District Court Judge Jose L. Linares is in response to the government's motion to dismiss the Complaint.

The brief in opposition to the motion to dismiss the lawsuit can be found at http://law.newark.rutgers.edu/files/u/PltfsBriefInOppToDefsMotionToDismiss.pdf

The complaint was drafted by Rutgers' law students under Professor Askin's supervision, after a yearlong study of the Constitutional Convention of 1787 and the adoption of the Constitution's Article I, Section 8, lodging the power to declare war in the Congress, rather than the President.

The suit does not ask the Court to take any direct action against ongoing activities in Iraq. It claims that the President is not authorized under the Constitution to launch a preemptive war against a sovereign nation and seeks a Declaration that can be used as a guide to the legality of such actions in the future.


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Founded in 1957, Peace Action, the United States' largest peace and disarmament organization with over 100,000 members and nearly 100 chapters in 34 states, works to achieve the abolition of nuclear weapons, promote government spending priorities that support human needs and encourage real security through international cooperation and human rights.