US bombing unconstitutional?

US bombing unconstitutional?

Fri, 28 May 1999

http://jurist.law.pitt.edu/ratner.htm"

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

TOM CAMPBELL, Member,
U.S. House of Representatives,
2442 Rayburn House Office Bldg.
Washington, DC 20515;

DENNIS KUCINICH, Member
U.S. House of Representatives,
1730 Longworth House Office Bldg.,
Washington, DC 20515;

BOB BARR, Member,
U.S. House of Representatives
1207 Longworth House Office Bldg.,
Washington, DC 20515;

ROSCOE BARTLETT, Member,
U.S. House of Representatives,
2412 Rayburn House Office Bldg.,
Washington, DC 20515;

DAN BURTON, Member,
U.S. House of Representatives,
2185 Rayburn House Office Bldg.,
Washington, DC 20515;

JOHN COOKSEY, Member,
U.S. House of Representatives,
317 Cannon House Office Bldg.
Washington, DC 20515;

PHILIP CRANE, Member
233 Cannon House Office Bldg.,
Washington, DC 20515;

WALTER JONES, Member,
U.S. House of Representatives,
Washington, DC 20515;

MARCY KAPTUR, Member,
U.S. House of Representatives,
2366 Rayburn House Office Bldg.,
Washington, DC 20515;

DONALD MANZULLO, Member,
U.S. House of Representatives,
409 Cannon House Office Bldg.,
Washington, DC 20515;

CHARLIE NORWOOD, Member,
U.S. House of Representatives,
1707 Longworth House Office Bldg.,
Washington, DC 20515;

RON PAUL, Member,
U.S. House of Representatives,
203 Cannon House Office Bldg.
Washington, DC 20515;

TOM PETRI, Member,
U.S. House of Representatives,
2462 Rayburn House Office Bldg.
Washington, DC 20515;

MARSHALL SANFORD, Member,
U.S. House of Representatives,
1233 Longworth House Office Bldg.,
Washington, DC 20515;

JOE SCARBOROUGH, Member,
U.S. House of Representatives,
127 Cannon House Office Bldg.,
Washington, DC 20515;

BOB SCHAFFER, Member,
U.S. House of Representatives,
212 Cannon House Office Bldg.,
Washington, DC 20515;

THOMAS TANCREDO, Member,
U.S. House of Representatives,
1123 Longworth House Office Bldg.,
Washington, DC 20515;

Plaintiffs,

- vs. -

WILLIAM JEFFERSON CLINTON,
President of the United States,
1600 Pennsylvania Avenue NW,
Washington, DC 20500,

Defendant.

COMPLAINT FOR DECLARATORY RELIEF

PRELIMINARY STATEMENT

1. In this action seventeen members of Congress seek declaratory relief declaring that the Defendant, the President of the United States, is unconstitutionally continuing an offensive military attack by United States Armed Forces against the Federal Republic of Yugoslavia without obtaining a declaration of war or other explicit authority from the Congress of the United States as required by Article I, Section 8, Clause 11 of the Constitution, and despite Congress' decision not to authorize such action.

2. Plaintiffs also seek a declaration that a report pursuant to Section 1543(a)(1) of the War Powers Resolution was required to be submitted on March 26, 1999, within 48 hours of the introduction into hostilities in the Federal Republic of Yugoslavia of United States Armed Forces. Additionally, Plaintiffs seek a declaration that, pursuant to Section 1544(b) of the Resolution, the President must terminate the use of United States Armed Forces engaged in hostilities against the Federal Republic of Yugoslavia no later than sixty calendar days after March 26, 1999. The President must do so unless the Congress declares war or enacts other explicit authorization, or has extended the sixty day period, or the President determines that thirty additional days are necessary to safely withdraw United States Armed Forces from combat.

JURISDICTION

3. Jurisdiction lies under 28 U.S.C. '' 1331, 1361, 1651, 2201-2202, and the Constitution of the United States, Article I, Section 8, Clause 11.

PARTIES

4. Plaintiffs are the seventeen Members of the U.S. House of Representatives whose names appear in the caption of this Complaint. Plaintiffs file this suit in their official capacities as Members of the U.S. House of Representatives.

5. Defendant William Jefferson Clinton is President of the United States. Defendant is sued in his official capacity as President.

CONSTITUTIONAL FRAMEWORK

6. Under Article I, Section 8, Clause 11 of the Constitution, Congress has the sole power to declare war and issue letters of marque and reprisal.

WAR POWERS RESOLUTION

7. Pursuant to Section 1543(a)(1) of the War Powers Resolution, the President is required to submit a written report to the Speaker of the House of Representatives and to the President pro tempore of the Senate within 48 hours of the introduction into hostilities of United States Armed Forces. Within sixty days of the date that report is submitted or required to be submitted, the President, pursuant to Section 1544(b), shall terminate any use of United States Armed Forces unless Congress has declared war, has enacted a specific authorization for such use of force or otherwise extended the sixty day period, except that the President can extend the time period for thirty days, if necessary to safely withdraw United States Armed Forces from combat.

FACTS

8. On March 24, 1999, United States Armed Forces at the direction of the Defendant began massive air strikes in the Federal Republic of Yugoslavia.

9. On March 26, 1999, the President submitted a report to the Speaker of the House of Representatives and the President pro tempore of the Senate stating that United States Armed Forces began a series of air strikes in the Federal Republic of Yugoslavia. In the report the President states that he is "providing this report as part of any efforts to keep Congress fully informed, consistent with the War Powers Resolution." The report states that to "limit his [Yugoslavian President Slobodan Milosevic's] ability to make war . . . . United States and NATO forces have targeted the Federal Republic of Yugoslavia government's integrated air defense systems, military and security police command and control elements, and military and security police facilities and infrastructure. United States naval ships and aircraft and U.S. Air Force aircraft are participating in these operations."

10. Administration officials have stated that a substantial and sustained air campaign is ongoing against the Federal Republic of Yugoslavia.

11. Between March 24, 1999, and April 28, 1999, United States and allied aircraft flew over 11,500 sorties over the Federal Republic of Yugoslavia, an average of approximately 350 sorties per day. During the same period, the United States and allied aircraft launched over 4,400 confirmed air strikes on Yugoslavia territory, an average of over 100 per day. United States Armed Forces also launched over 180 cruise missiles against Yugoslavia during this time period. The United States has tens of thousands of military personnel involved in the military operations against Yugoslavia.

12. Administration officials state that it is likely that the current hostilities will be protracted. In testimony before Congress on April 21, 1999, Secretary of State Madeleine Albright, referring to the hostilities against Yugoslavia, stated that "As the President and our military leaders have made clear, this struggle may be long." On April 29, 1999, President Clinton stated that the air attacks are likely to continue for many months.

13. To support an expansion of the U.S. air offensive over Yugoslavia, President Clinton authorized the Pentagon to summon as many as 33,102 reservists to active duty. Defendant's decision represented the largest activation of reservists since the 1991 Persian Gulf War against Iraq. This call up was in part necessary to increase the number of United States aircraft involved in the Yugoslav operation to almost 1,000.

14. United States officials have stated that the air attack against Yugoslavia will escalate in the coming weeks. U.S. General Wesley Clark, the NATO Commander, stated on April 27, 1999, that the air strikes thus far have "been only a fraction of what is to come."

15. On April 28, 1999, the U.S. House of Representatives decided not to authorize the President of the United States to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia. The House of Representatives defeated by a vote of 213 to 213 S. Con. Res. 21 which would have authorized such military operations.

16. On April 28, 1999, the U.S. House of Representatives, by a vote of 427 to 2 determined not to declare war by defeating H. J. Res. 44 which would have declared war against Yugoslavia.

17. The Plaintiffs are Democratic and Republican members of Congress who voted against S. Con. Res. 21 or H. J. Res. 44 of the 106th Congress.

IRREPARABLE INJURY

18. Plaintiffs have no adequate or complete remedy at law to redress the violations set forth herein. The President's initiation of an offensive military attack by the United States Armed Forces against the Federal Republic of Yugoslavia without obtaining a declaration of war or other explicit authority of Congress, deprives plaintiffs of their constitutional right and duty under Article I, Section 8, Clause 11, to commit this country to war, or to prevent, by refusing their assent, the committing of this country to war. It also completely nullifies their vote against authorizing military air operation and missile strikes against Yugoslavia.

FIRST CAUSE OF ACTION

19. The continuing offensive air attacks against Yugoslavia and other military actions against Yugoslavia constitute substantial, sustained, continuous, and prolonged armed hostilities against a foreign state that required the authorization of Congress pursuant to Article I, Section 8, Clause 11 of the U.S. Constitution.

20. Defendant's initiation of and continuation of an offensive military attack by United States forces against the Federal Republic of Yugoslavia, without obtaining a declaration of war or other explicit authorization from the Congress of the United States, violates Article I, Section 8, Clause 11 of the Constitution and deprived and continues to deprive the Plaintiffs of their constitutional right, opportunity, and duty to prevent, by refusing their assent, the entry of the United States into a war against the Federal Republic of Yugoslavia.

21. Defendant's continuation of an offensive military attack by United States forces against the Federal Republic of Yugoslavia, despite the vote of the House of Representatives on S. Con. Res. 21 explicitly refusing to authorize such action, violates Article I, Section 8, Clause 11 of the Constitution. Defendant's action injures Plaintiffs in that it completely nullifies and overrides the Plaintiff legislators' votes which were sufficient to defeat the legislative act of authorization which the Constitution requires for the Defendant to lawfully undertake the above described military action.

SECOND CAUSE OF ACTION

22. On March 24, 1999, United States Armed Forces were introduced into hostilities against the Federal Republic of Yugoslavia.

23. On or before March 26, 1999, the President was required to submit a report pursuant to Section 1543(a)(1) of the War Powers Resolution to Congress regarding the hostilities in Yugoslavia.

24. On May 25, 1999, the President is required, pursuant to Section 1544(b) of the War Powers Resolution, to terminate such hostilities unless Congress declares war or enacts other explicit authorization for such use of United States Armed Forces, or has extended the sixty day period by law, or the President determines that unavoidable military necessity respecting the safety of United States Armed Forces requires their continued use of up to an additional thirty days in the course of bringing about a prompt removal of such forces.

25. The Defendant has indicated that he intends to continue such hostilities against Yugoslavia for the indefinite future despite the failure of Congress to explicitly authorize such military action. The continuation of such military action violates the War Powers Resolution.

WHEREFORE, Plaintiffs pray that this Court enter an Order as follows:

(a) declaring that Defendant William Jefferson Clinton is unconstitutionally conducting an offensive military attack against the Federal Republic of Yugoslavia without obtaining a declaration of war or other explicit authorization from Congress and despite Congress' decision not to authorize such action;

(b) declaring that as of March 26, 1999, President Clinton was required to submit a report pursuant to Section 1543(a)(1) of the War Powers Resolution reporting on the introduction of United States Armed Forces into hostilities in the Federal Republic of Yugoslavia; further declaring that no later than May 25, 1999, the President must terminate the involvement of United States Armed Forces in such hostilities unless the Congress declares war, or enacts other explicit authorization, or has extended the sixty day period; or if the President has determined that thirty additional days are necessary to safely withdraw United States Armed Forces from combat -- declaring that no later than June 24, 1999, the President must terminate the involvement of U.S. Armed Forces in such hostilities;

(d) granting such other and further relief as may be just and proper.

Respectfully submitted,

JULES LOBEL MICHAEL RATNER

Center for Constitutional Rights

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