The Sunday Magazine

Why a U.S. Army captain is suing his own Commander-in-Chief over the war with ISIS

U.S. Army Captain Nathan Smith is on active duty in Kuwait, and at the same time, he is suing his own Commander in Chief. His suit argues that the war against ISIS is unconstitutional because President Obama failed to secure Congressional authorization. Michael talks to Yale law professor Bruce Ackerman, who is advising Captain Smith's legal challenge.
U.S. Army Captain Nathan Smith calls ISIS "an army of butchers," but he believes the U.S. campaign against ISIS may be unconstitutional. (ISIS)

In 2010, Nathan Michael Smith enlisted in the U.S. Army. Smith grew up in a military family and believes that the U.S. military is a force for good in the world.

Today, 28-year-old Captain Nathan Smith is an intelligence officer serving in the Kuwait headquarters of the Combined Joint Task Force that oversees the U.S. and coalition campaign against ISIS. He believes the mission he is taking part in is morally justified, but he also believes it is illegal. 

Because of that belief, he is suing his own Commander in Chief, U.S. President Barack Obama, over his failure to secure a new Congressional authorization to wage war against ISIS in Syria and Iraq.

"[T]he President has failed to publish an opinion prepared by the Justice Department’s Office of Legal Counsel or the White House Counsel to justify the war against ISIS. He has instead left it to Administration spokespersons to provide ad hoc and ever-shifting legal justifications for a military campaign that is constantly changing its strategic objectives and escalating its use of force," says a lawsuit filed by Captain Nathan Smith on May 4, 2016. (Carlos Barria/Reuters )

The lawsuit springs from a 2015 article in The Atlantic by Yale law professor Bruce Ackerman, who argued a soldier would have standing to challenge the legality of the mission in court. Captain Smith contacted Ackerman after reading the article, and Ackerman is now advising his legal challenge. 

This is a turning point. If we have a liberated presidency asserting the Obama a foundation for unilateral war-making [by] what is, after all, by far the most powerful military power in the world, this is very, very serious. - Bruce Ackerman

White House lawyers argue the authorizations for the use of force against Al-Qaeda and Saddam Hussein in the wake of 9-11 apply to the current conflict, but Ackerman argues that sets a dangerous precedent for "open-ending war-making by the Commander-in-Chief." The lawsuit asks the court to tell President Obama he must secure Congressional authorization, or end the mission. 

Michael Enright spoke to Bruce Ackerman about the lawsuit and the growing power of the U.S. presidency. 

The constitution has this peace commitment, and it wants a deadlock. It doesn't want the president to go in and say, "There's a war, and let's do it." He has to convince the American people that this is necessary. - Bruce Ackerman

Click the button above to hear Michael Enright's conversation with Bruce Ackerman. 


To encourage thoughtful and respectful conversations, first and last names will appear with each submission to CBC/Radio-Canada's online communities (except in children and youth-oriented communities). Pseudonyms will no longer be permitted.

By submitting a comment, you accept that CBC has the right to reproduce and publish that comment in whole or in part, in any manner CBC chooses. Please note that CBC does not endorse the opinions expressed in comments. Comments on this story are moderated according to our Submission Guidelines. Comments are welcome while open. We reserve the right to close comments at any time.

Become a CBC Member

Join the conversationCreate account

Already have an account?