Lawsuit targets Iraq war’s validity

Rutgers prof: Bush ignored Constitution
Wednesday, April 22, 2009
BY JOE RYAN
Star-Ledger Staff
When lawyers and judges cite the original intent of the framers of the Constitution, they’re often marshaling conservative arguments. And Supreme Court Justice Antonin Scalia, noted for his right-leaning views, is a leading figure in the stick-to-the-original-text school of jurisprudence.
But conservatives don’t hold a monopoly on the theory.
In federal court in Newark yesterday, a Rutgers University law professor arguing a lawsuit on behalf of a peace group told a judge that President George W. Bush violated the Constitution’s initial intent when he ordered the 2003 invasion of Iraq.
Frank Askin, founder of the constitutional litigation clinic at the Rutgers School of Law in Newark, said the framers clearly gave Congress — not the president — authority to declare war. Afterward, he even mentioned Scalia.
“We think Scalia is going to love this case. It’s all about the initial intent of the founders,” said Askin, who argued the suit for the group New Jersey Peace Action.
During yesterday’s hearing, a Justice Department attorney asked U.S. District Judge Jose Linares to dismiss the suit, which seeks to have the war in Iraq declared unconstitutional.
The government’s lawyer, Jeffrey Smith, argued that Congress debated vigorously before giving Bush authorization in 2002 to deploy troops. The invasion began six months later.
“It’s clear that Congress was participating in the decision,” Smith said.
But Askin and fellow lawyer Bennet Zurofsky said Bush needed a formal declaration of war to send troops into a sovereign nation.
The suit, filed in May, does not call for the U.S. to withdraw troops from Iraq. Instead, it seeks to ensure future presidents do not impinge on Congress’ sole authority to declare war, Askin said.
“That power was delegated by the founders to Congress and Congress alone,” Askin said.
The suit also was filed on behalf of two women whose sons served in Iraq: Paula Rogovin of Teaneck and Anna Berlinrut of South Orange.
Linares said he would decide “quickly” whether to dismiss the suit.
Askin declined to speculate on how the judge would rule. But ultimately, he predicted the case would wind up before the 3rd U.S. Circuit Court of Appeals — one judicial step away from Scalia himself.

Joe Ryan may be reached at jryan@starledger.com or (973) 622-3405.

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