War Powers

The ISIS Lawsuit and the Perverse Effects of National Security Litigation

By Rebecca Ingber
Friday, May 13, 2016, 2:12 PM

Last week, U.S. Army Captain Nathan Michael Smith sued the U.S. Government in federal court, seeking a declaration that Obama’s war against ISIS is illegal. Jack Goldsmith and Marty Lederman have put forward competing views over whether this lawsuit is a big deal. Both think the court would conclude that force is authorized against ISIS if it reaches the merits; Marty thinks Smith will lose on standing before it gets that far—pick your poison.

I agree with both of them that there is little chance of the suit succeeding. But that does not mean that it will be inconsequential. Its most significant impact will not likely be in spurring either the courts or Congress to action, but rather in forcing the Executive to craft and clarify its legal position on the scope of its authority against ISIS and its statutory war powers more generally from the self-protective crouch of defensive litigation. In fact, assuming the ultimate result is a win for the President, the further along this lawsuit gets, the greater the risk it will result in less, rather than more, accountability and constraint on the Executive’s power.

These kinds of advocacy lawsuits against the President in the national security arena often have perverse effects on the resulting law. The intent is generally to force constraints onto the executive branch—to shine a spotlight on the President’s actions, to force the Executive to present its legal position to the public and thus enhance transparency and accountability, and ideally to prompt the courts or Congress to rein in Executive overreach. (Although here the intent seems to be to spur Congress to act to authorize the President’s war, the idea is that in doing so, it would push back against the position that the President could act without that authorization.) As Bruce Ackerman put it, the lawsuit is aimed at forcing the ISIS authorization issue “back on the agenda.” That’s definitely going to happen, but I’m not sure it’s the agenda Ackerman has in mind. The real effect of this lawsuit will be to move the legal question of the President’s authority to use force against ISIS up on the agenda within the executive branch, and to move it directly onto the plate of the litigating offices of the Department of Justice. This means that the Executive offices now holding the pen on the President’s legal position are those who are institutionally built to fight tooth and nail to defend the broadest interpretation of Executive power.

Sometimes in these cases, the courts engage, sometimes Congress engages—and we can continue to hope that they will do so in the most egregious cases of executive overreach. But as I have written elsewhere, since the courts are generally disinclined to interfere with Executive action in the national security area, the Executive’s own process for decision-making is often the only game in town. Suing the US government can trigger progressive policy decisions, and for this reason alone may at times be worthwhile. (In this particular case that result is hard to imagine; moreover it is not clear that the backers of the lawsuit actually want a policy change.) But in cases where the US government is unlikely to face real pushback, litigation is quite possibly the worst vehicle for forcing a forward-leaning, President-constraining legal position out of the executive branch.

Just look at the GTMO litigation. The original habeas cases shined a spotlight on the Executive’s detention practices, and likely played a significant role in forcing the Bush administration to change its treatment policies and to release hundreds of detainees. The effect of these cases on the resulting law is a different matter. Ultimately, the habeas lawsuits overwhelmed all of the incoming President’s ambitions for reconsidering the scope of detention and his wartime authority, swept them out of the hands of the deliberative task forces he had crafted to consider them, and shifted them into the defensive litigation machinery, which is built to do just that: defend the President’s actions and authority. (That’s not intended as a critique of litigators—this is their job.) Ultimately, once the courts started routinely deferring to the executive branch, the Executive’s litigation position became the law of the land.

Let’s play out how this ISIS lawsuit is most likely to go down.

Until now, there has likely been a tenuous balance within the executive branch over the precise legal position on ISIS: there are those who want to cabin the war to the extent feasible, and those who are keen to avoid creating aggressive precedents for future Presidents. These sentiments weigh against a felt need to take kinetic action against ISIS. Yet there is also a sense that this Congress is not up to the task of enacting a responsible statute. Right or wrong, the political powers that be decided that arguing that ISIS falls within the 2001 and 2002 AUMFs is the simplest, safest, and most limited way to thread this needle. Press reports suggest that this decision originated in the White House, and the DOD General Counsel has thus far provided the clearest description of the Executive’s position. This Administration owns this position at the highest levels.

Now with the filing of this complaint, the Administration will have to craft its response. DOJ litigators will take a first crack at drafting the brief. Because this case is unique and has garnered significant publicity, senior officials will also weigh in (although the longer the case drags out, the greater the likelihood that the political leadership will get captured by other pressing matters). The most likely outcome of the first round—if the Executive says anything on the merits at all—will be a simple repetition of exactly what Executive officials have already said publicly, simply because this will be the easiest thing to do: all of the points will have already been cleared by all of the relevant agencies. If that works, it may be all over before it’s started, with nothing more constraining the Executive’s position on its legal authority against ISIS than it had already put forward, but with the veneer of some judicial review. That may well be the best case scenario for advocates of Executive constraint here.

If the litigation continues, and the court forces the Executive to further clarify its position beyond what it has already stated publicly, this will force an internal decision-making process to clarify what the content of that position should be—perhaps not only on the ISIS conflict itself but on the Executive’s authority to use force more broadly, and to interpret its power under Congressional authorizations. And as I’ve mentioned, this will all play out in the context of defensive litigation, in which litigators call the meetings, hold the pen, and mold the Administration’s legal positions against a backdrop of an institutional culture geared toward zealous defense and preserving the greatest possible flexibility for the President. Their success rate is high, and they almost never file briefs suggesting new constraints on Executive authority when the Executive has not already announced such constraints in a different context. They are not likely to do so here.

Once the court throws out the suit one way or another (or decides for the President), the Executive’s aggressive litigation position will almost certainly become the law of the land. If the court accepts the Executive’s legal position on the merits, then that position will gain the imprimatur of the judicial branch. Even if the court dismisses the complaint on standing grounds, the legal position articulated in the brief will remain the Executive branch position going forward, which will be all that matters if the other branches don’t want to engage. Furthermore, the mere semblance of judicial review will have taken some of the heat off the President for his legal position. He will no longer be out there on a limb all alone; rather he will claim that he’s thrown the question to the courts and they’ve given him the all clear.

And what about Congress? Jack points out that the lawsuit could have the unintended effect of “deadening,” rather than spurring, a Congressional role. I’ll go a step further. Congress will rely on any veneer of judicial review as a justification to accept the Executive’s position of its own (Congress’s) presumed intent under the 2001 AUMF, just as it has with judicial ratification of the Executive’s co-belligerency theory (see here, at note 59). And with the courts deferring to the Executive, Congress then deferring to the court’s acceptance of the Executive’s position on presumed Congressional intent, and the President claiming to share authority with both based on perceived deference and acquiescence—the “law” we will be left with going forward will be the legal position Executive officials intended only as an opening gambit in what was supposed to be a multiplayer game.

Litigation often seems like the best tool to cabin Executive overreach. But when judicial review lacks real teeth, it can have the opposite result. It is worth keeping this in mind when we consider arguments about getting the courts involved in targeted killing decisions. We can hope for more from the courts and Congress. But in the meantime, perhaps it is time to consider alternative catalysts for forcing legal constraints onto the President. As for those inside the government who have been working to contain the Executive’s legal positions and to limit to the extent feasible the precedents this Administration sets for future Presidents, those goals do not have to change simply because the context is defensive litigation. It is worth bearing in mind that in this context, the arguments made in US government briefs will almost certainly become the law of the land.