CRS Reports & Analysis
Legal Sidebar
UPDATE: Smith v. Obama: A Servicemember’s Legal
Challenge to the Campaign Against the Islamic State
04/04/2017
UPDATE: The Plaintiff, Captain Smith, appealed the dismissal of his suit to the United States Court of Appeals for the
District of Columbia. An opening brief
and joint appendix have been filed in the appellate proceedings.
On November 21, 2016, a United States district court dismissed a lawsuit by a U.S. Army intelligence officer, Captain
Nathan Smith, challenging the Obama Administration’s legal authority to conduct the military campaign against the
Islamic State. Although the court dismissed the complaint on jurisdictional grounds (discussed below) without reaching
the merits of the challenge to the President’s authority, the case serves to highlight several ongoing issues related to
Congress’s role in the ongoing military actions against the Islamic State, dubbed Operation Inherent Resolve. As
outlined in earlier CRS Reports, the Constitution allocates the power to carry out military operations to both the
executive and legislative branches, but the breadth of Congress’s role in military operations has been the subject of
longstanding debate. Captain Smith argued that Operation Inherent Resolve exceeds the President’s commander-in-chief
authority under Article II of the Constitution and the two existing statutory authorizations for the use of military force
(AUMFs): the 2001 AUMF enacted in aftermath of the September 11, 2001 and the 2002 AUMF against Iraq.
The Merits of Captain Smith’s Primary Claim
The crux of Captain Smith’s complaint was the theory that, because Congress has not declared war or “specifically
authorized” the use of force against the Islamic State, Section 5(b) of the War Powers Resolution requires the President
to withdraw U.S. troops from hostilities no more than 60 days (or 90 days in certain cases) after they were introduced,
which, in this case, was in mid-2014. The Obama Administration initially cited the President’s constitutional authority
under Article II as the sole legal basis for military operations against the Islamic State during the early months of the
campaign, and before the timelines of the War Powers Resolution had arguably expired. Since September 2014,
however, the Administration has asserted that the 2001 and 2002 AUMFs already confer congressional authorization for
the conflict—meaning no further congressional action would be required.
The 2001 AUMF authorizes force against the organizations that “planned, authorized, committed, or aided” the
September 11 terrorist attacks, which has been interpreted to include al-Qaeda, the Taliban, and, at least in the context
of wartime detention, other “associated forces.” Captain Smith argued that Congress could not have intended to
authorize operations against the Islamic State because that organization did not come into existence until three years
after the September 11 attacks, and it severed ties with al-Qaeda eight years before the inception of Operation Inherent
Resolve. The Administration, which disputed the timing of the split with al-Qaeda, responded by contending that,
regardless of when the schism occurred, terrorist organizations like the Islamic State cannot “control the scope of the
[2001] AUMF by splintering into rival factions while continuing to prosecute the same conflict against the United
States.”
The 2002 AUMF authorizes the President to use force to “defend the national security of the United States against the
continuing threat posed by Iraq; and enforce all relevant [U.N.] Security Council resolutions regarding Iraq.” Captain
Smith alleged that this authorization could not apply to the current conflict because the executive branch advised
Congress by letter on July 24, 2014 that, “[w]ith American combat troops having completed their withdrawal from Iraq
