DAVID AND GOLIATH

By William Fisher

His name is Clare Callan.

He is a feisty 85-year-old former congressman from rural Nebraska.

And he is asking the Supreme Court to declare that President Bush had no legal authority to go to war in Iraq.

Mr. Callan does not see himself as Don Quixote. He is not asking the Supreme Court to end the war. He is a World War II veteran served on a US Navy destroyer in the Pacific, who is proud of the US military, proud of his own service, and proud of the troops fighting in Iraq.

But he believes that president violated the Constitution when he sent American troops into harm’s way. Now, he wants the nation’s highest court to say so.

Here’s his case:

When Congress passed the Iraq Resolution, it specifically made it subject to the War Powers Resolution of 1973, known as the War Power Act. The Iraq resolution was definite. “Nothing in this joint resolution supersedes any requirement of the War Powers Resolution,” the Resolution said. It did not give the President authority to take the nation to war. It granted him only the right to determine whether the standards required by War Powers Act Congress had been met.

The War Powers Act was passed near the end of the Vietnam War in an effort to ensure that future Congresses would be less likely to abdicate their constitutional responsibility to decide whether the nation should go to war.

To justify going to war, the War Powers Act sets out several criteria. Most important of these is "clear" evidence of an "imminent" threat to US security. The words "clear" and “imminent” are used repeatedly in the War Powers Act to describe situations where US military force is permitted.

In the run-up to the invasion – and ever since -- the president inexplicably went out of his way to avoid using the words “clear” and “imminent”. He described the threat from Iraq with many adjectives such as “growing” and “gathering”. But, while some of his surrogates, including his then press secretary, Ari Fleisher, declared the threat “imminent”, the president never did.

Mr. Callan’s suit charges that the president thereby failed to meet his Constitutional obligation.

Mr. Callan filed his suit in a US Circuit Court three years ago. It has been rejected and appealed multiple times since then, finally working its way up to the Supreme Court. When the Court met last month to decide the cases it would hear in its next session, it too rejected Mr. Callan. But, undeterred, he is now preparing a petition for rehearing, and hopes the Court will finally listen to his complaint.

Mr. Callan – whose favorite pastime is talking politics with his fellow veterans who gather at the Moose Lodge in Odell, Nebraska – served one term as a Democrat in the 89th Congress, when Lyndon Johnson was president. He stayed in Washington for a time after losing a reelection bid, and had several jobs including deputy director of the Rural Electrification Administration. He has financed his current legal battle from his own pocket – and thinks it’s money well spent.

“We all saw what happened when President Johnson fabricated a pretext for going to war in Vietnam. The War Powers Act was passed to prevent future presidents from doing that ever again, “ he says.

Ironically, some of the nation’s best-known conservatives appear to be on Mr. Callan’s side. For example, in a January 13 appearance televised on C-Span, Supreme Court Justices Antonin Scalia and Stephen Breyer agreed that “being the right thing to do” should play no role in how judges enforce the law.

Both Justices agreed that it is not the job of the Supreme Court to do what they personally think is "morally right. Justice Scalia said the court should not be so “arrogant” as to believe that our "moral" standards should be applied to interpret the law. He said: Although the law "cannot become divorced from life," no one should substitute his judgment for that of the legislature. Majority sentiment expressed by the election of a President does not empower any President to act above the law or to slant interpretation of the law to conform to a predetermined agenda.

Many conservative pundits agree. For example, in an August 4 edition of “The Beltway Boys” on Fox News, panelists agreed that Bush never labeled the Iraqi threat "imminent" -- only "urgent". Morton M. Kondracke, executive editor of Roll Call, said, “I think everybody would agree that the word ‘imminent’ was the crucial word, over which the fight took place. And in the case of Iraq, clearly there was not an imminent threat, and Bush didn't say there was.” Fred Barnes, executive editor of the Weekly Standard, agreed: President Bush “said the opposite”.

US Senator Jon Kyl, a Republican from Arizona, in a speech on March 12, 2004, said, “"One of the great myths generated by the president's opponents is that he justified action by claiming the threat posed by Saddam's regime was imminent. Well, the stubborn fact is, that wasn't the president's claim -- in fact, he specifically disclaimed that rationale for his decision.”

Kyl recalled the president’s 2003 State of the Union address, when the president stated: "Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late.”

The Bush administration defends the war on Iraq as “right,” regardless of the evidence, now, or before the war, and provides further justification for the war by arguing that the war in Iraq has made us safer. However, as Justice Scalia said, “Right is not necessarily legal.”

Mr. Callan hopes that, belatedly, the Supreme Court will find it illegal.