Mary L. Dudziak in Dissent:
As the Obama administration announced plans to step up its military campaign against ISIS this spring, a twenty-eight-year-old army officer, Captain Nathan Michael Smith, took President Barack Obama to court. He argued that the war against ISIS is illegal because Congress has not authorized it. Smith’s action highlights persistent problems with the legal basis for the military campaign, and has generated interest and support from leading legal scholars. And so President Obama, a law professor turned president who pledged to bring in the rule of law to restrain presidents’ use of force, finds himself the target of a lawsuit arguing that his own military initiative is unlawful.
Captain Smith is stationed in Kuwait, as part of the American military effort to defeat ISIS in Iraq and Syria. His claimed injury is that fighting an illegal war requires him to violate his oath to “preserve, protect, and defend the Constitution of the United States.” His lawsuit challenges the fractured logic of the legal basis for the military campaign, including the idea that the Authorization for the Use of Military Force against those who perpetrated the September 11, 2001, terrorist attacks and their supporters somehow extends to an organization that did not exist at the time.
But something more fundamental underlies this dispute. The reason the president has been unable to get Congress to pass a new war authorization isn’t because Congress opposes military action against ISIS, and it isn’t a simple matter of partisan stalemate. It is because there is no real political constituency for military matters. Faraway conflicts upend lives on the battlefield. As long as someone else’s family does the fighting, U.S. military operations have little impact on Americans at home. Most Americans are protected from the costs of armed conflict. There is no required military service since Congress eliminated the draft in 1973. Other changes in the way the country wages war—relying on contractors to reduce the number of troops, and on technologies that make war appear more precise and less destructive—contribute to a buffer between American civilians and the wars their country is fighting. Without voters paying attention, neither the president nor Congress is held accountable.
More here.