The Supreme Court recently rejected the civil suit Clair Callan Vs. President George W. Bush. The plaintiff is a senior citizen from Nebraska. The case has slowly made its way through the lower courts, which have rejected it on the grounds that they have no jurisdiction to hear the suit, or that Mr. Callan does not have a lawful cause of action. It alleges that the president violated American law by invading Iraq. Specifically at issue is the War Powers Act.

In 1973, a post-Vietnam War Congress wanted to ensure that no future president could send troops into battle without just cause and congressional oversight. Consequently, it passed the War Powers Act, which permits the president to introduce the military into combat 'where imminent involvement in hostilities is clearly indicated by the circumstances.' Congress was determined that this requirement be met before committing troops, as is evidenced by the fact that this verbiage appears in the act four times. The act further stipulates that the president has 60 days to obtain a Congressional declaration of war, or approval for the continued use of the military, otherwise the troops must be withdrawn.

This civil suit accuses the president of failing to meet the requirements of the act. Although Congress in 2002 did give Bush approval to use the military against Iraq, the suit alleges that 'imminent involvement' by the military was not 'clearly indicated by the circumstances.' Leading up to the war, President Bush used phrases such as 'a gathering threat' to describe the necessity of military action. In fact, in his State of the Union address in 2003, he remarked that 'Some have said we must not act until the threat is imminent…If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late.' As such, this case clearly has merit.

The civil suit may be valid in another respect. In order to prevent any future administration from entering into a war without an exit strategy, the act requires that the president report on the 'estimated scope and duration of the hostilities or involvement' to Congress. Bush has found this conspicuously difficult to do. The administration’s justification for not including the cost of the war in Iraq and Afghanistan in its budget has been that it cannot predict how many forces will ultimately be needed, or how long this military action will last. The president has said repeatedly that he does not know when the troops will get to come home, only that they will not stay longer than necessary. This would seem to be a further violation of the act. Most presidents have ignored the War Powers Act, viewing it as an infringement of the powers of the executive branch. When criticized, presidents have cited Article II, Section 2 of the Constitution which stipulates that 'The president shall be Commander-in-Chief of the Army and Navy of the United States.' President Reagan ignored the act when he undertook military action in Grenada, Lebanon, Libya, Central America, and the Persian Gulf. President Bush said the act didn’t apply to military engagements in Panama, and initially, the Gulf War. President Clinton did much the same with military deployments in Haiti, Somalia, Bosnia, and Iraq.

Bush is not the first president to face litigation over the act. In 1991, members of Congress filed a lawsuit against President Bush, accusing him of violating the War Powers Act as he prepared for the Gulf War. The court decided not to render a verdict since Congress had not decided if a declaration of war was necessary. Bush initially maintained that the act did not apply, but ultimately sought congressional approval. Several members of Congress sued President Clinton in 1999 for bombing Yugoslavia. The court ruled that since Congress had neither approved of nor blocked continuation of the bombing, there was no constitutional impasse, and therefore there was no need to issue a ruling on the act.

What makes this current civil suit urgent is the scope of the military’s involvement in Iraq. There are approximately 150,000 American troops there. They face the most aggressive insurgency of any conflict since the Vietnam War. And the Pentagon is constructing twelve permanent military bases in Iraq.

By rejecting to hear the civil suit, the Supreme Court has abdicated its constitutional role. This was an opportunity for the justices to settle a cumbersome, thirty year-old legal, political, and military question that has divided the legislative and executive branches. More importantly, the Court could have provided some semblance of legitimacy in the invasion of Iraq, by validating the president’s use of the military. Or, it could have provided a way out of the war, by finding that military action, in this instance, was unlawful.