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Rebuilding Iraq

Suit challenges right to wage Iraq war

Six in Congress, soldiers, kin ask for federal stay

By Thanassis Cambanis, Globe Staff, 2/14/2003

Accusing George W. Bush of acting like a monarch, not an American president, a group of US soldiers, their parents, and six members of Congress sued the White House yesterday to block any invasion of Iraq unless Congress issues a declaration of war.

''The president is not a king,'' said John C. Bonifaz, the lead attorney in the lawsuit filed in US District Court in Boston. ''He does not have the power to wage war against another country absent a declaration of war from Congress.''

Both President Bush and Secretary of Defense Donald H. Rumsfeld are named as defendants in the suit.

The White House did not express any major concern about the lawsuit, which asks a federal judge to issue an injunction barring a war in Iraq. ''The Constitution grants the necessary authority to the president in his role as commander in chief,'' spokesman Ken Lisaius said yesterday evening. ''Furthermore, Congress has spoken on this matter.''

US District Judge Joseph L. Tauro scheduled a hearing for next Thursday morning. A spokesman from the US Department of Justice, which will defend the president, would not comment on the case.

Congress passed a resolution in October authorizing President Bush to use force in Iraq, but the plaintiffs in the lawsuit maintain that the Constitution requires an outright Congressional declaration of war.

Specialists in constitutional law said yesterday that they believed the October congressional resolution passed the threshold established by the 1973 War Powers Act.

''In my own view, the formalities of calling something a declaration of war ought not to matter,'' said Richard H. Fallon Jr., a professor at Harvard Law School. ''Congress has concurred in authorizing the president to put troops in harm's way.''

Similar federal lawsuits challenging the 1991 Gulf War and the Vietnam War failed.

The Korean, Vietnam, and Gulf wars all were fought without declarations of war, and Fallon pointed out that federal courts are hesitant to interfere with executive branch powers.

''I would be astonished if it worked,'' Fallon said of yesterday's lawsuit. ''No matter how much you might think this forthcoming war is a bad idea, you might have some qualms about a court issuing an order to stop it once hostilities are underway.''

The plaintiffs in yesterday's complaint include a US Marine stationed in the Persian Gulf; a recently-activated member of the Massachusetts National Guard; and an Air Force reservist from Massachusetts. They are identified in the complaint as John Doe to protect them from harassment or retribution, Bonifaz said. Four of the six parents of military personnel are identified by name in the suit.

The six members of Congress who joined the lawsuit are John Conyers, a Michigan Democrat; Dennis Kucinich, an Ohio Democrat; Jesse Jackson Jr., an Illinois Democrat; Jim McDermott, a Washington Democrat; Jose Serrano, a New York Democrat, and Sheila Jackson Lee, a Texas Democrat.

Charles Richardson and his wife Nancy Lessin, of Jamaica Plain, have actively protested the lead-up to another Gulf War. Yesterday, the couple said they joined the lawsuit in part out of concern for Richardson's son Joe, a US Marine stationed in the Persian Gulf.

''We notice that those who say we've got to go to war aren't going anywhere themselves,'' Lessin said.

Added Richardson, ''If my son is killed, will someone be able to tell me that there was a full and fair debate about the decision to go to war? Not now, not yet.''

The other named plaintiffs are Susan E. Schumann, of Shelburne Falls, whose son serves in a recently-activated National Guard unit, and Jeffrey McKenzie, of Gasport, N.Y., whose son is a US Army officer stationed in the Gulf.

McKenzie, Richardson, and Lessin are cofounders of the anti-war group Military Families Speak Out.

Bonifaz said it was not illegal for active duty members of the military to sue their commander-in-chief. ''These soldiers are not violating any orders,'' he said, adding, ''They do not want to fight in an illegal and unconstitutional war.''

In December 1990, a federal judge threw out a similar lawsuit by 54 members of Congress who argued the president needed a formal declaration of war before launching an invasion in the Gulf. In that case, the judge ruled the lawsuit was premature because the president had not yet clearly committed to a war.

Judges ruling in similar Vietnam-era cases found that Congress had effectively authorized that war through resolutions or through military appropriations.

Bonifaz is director of the National Voting Rights Institute, no stranger to political lawsuits.

After filing the lawsuit yesterday, Richardson and Lessin said they planned to travel to New York to take part in an antiwar march. ''We've had people come up to us and say we're unpatriotic. A former Marine said we were a disgrace,'' Richardson said. ''Well, we're not a disgrace to our son.''

Thanassis Cambanis can be reached at

This story ran on page A38 of the Boston Globe on 2/14/2003.
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