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BOSTON—The Massachusetts Federal District courtroom was packed with a bizarre assortment of aging pacifists, scruffy college protesters and sharply-dressed lawyers yesterday.
All were eager to hear John C. Bonifaz, a 1992 graduate of Harvard Law School (HLS), present his request for an injunction against military action in Iraq until Congress issues a formal declaration of war.
The suit, following similar failed actions against the Vietnam and Gulf wars, was dismissed by Judge Joseph Tauro on the grounds that it dealt with a political issue that was outside the jurisdiction of the judicial branch.
Bonifaz said he planned to file an appeal yesterday afternoon.
Six members of the U.S. House of Representatives, several parents of soldiers and three military personnel who wished to be known only as “John Does” signed on as plaintiffs to the suit. Bonifaz argued that the soldiers faced imminent and irreparable damages if the injunction wasn’t granted.
Although Congress passed a bill entitled “Resolution Authorizing the Use of Force in Iraq” in October, Bonifaz argued that it could not constitutionally cede the decision to wage war to the President. He called the legislative history of the resolution “murky,” and questioned the language of the legislation itself. He claimed that even if the constitutional basis for the suit were dismissed the language of Congress’ resolution would not permit the President to move unilaterally.
The resolution states that “The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevant United Nations Security Council resolutions regarding Iraq.”
Joseph Hunt, an attorney for the Department of Justice, argued yesterday that the court could not intervene in the matter because there is no demonstrable conflict between Congress and the President. The resolution quite clearly authorizes action on the part of the President, he said, mentioning that it would be premature to issue an injunction on military action that may or may not be imminent.
After Tauro read his preliminary order to the Court, about 50 protesters gathered outside the building for a quick rally followed by a march through downtown Boston.
Thew crowd shouted “No war without a declaration! Keep America a democratic nation,” while waving homemade signs.
A few protestors even dressed in costume, with one sporting a Betsy Ross outfit complete with a thirteen-star flag.
Charles G. Taylor ’69 was part of the protest to support Bonifaz.
“It’s just the smallest action, collectively, that will make all the difference in the world,” Taylor said. “It’s the only way.”
Organizer Caroline Arde, who led the march on crutches, said she came out to focus public attention on her cause.
“We’re a group of concerned citizens who have written letters to Congress, taken every form of indirect action,” she said. “We think it’s time for some direct action.”
Rebel With a Cause
Bonifaz is no stranger to public service law.
From his days as a student at the Law School, where he took on the faculty for its lack of diversity, to his founding of the National Voting Rights Institute, Bonifaz has devoted his career to serving the public interest.
Bonifaz and about a dozen other students brought suit against the school for harming their education by failing to hire a diverse faculty.
Although they were denied standing by the court, the effort was important, said Climenko Professor of Law Charles J. Ogletree, who taught Bonifaz.
“The suit failed, but there were two important consequences: The Court applauded their advocacy as representing the highest standards of professionalism though they were students rather than trained lawyers. It also generated raw dialogue in the faculty,” Ogletree said.
But despite his suit, Bonifaz said HLS wasn’t all bad; he praised the public interest law advising at the school and applauded the concrete steps that have been taken since his days as a student to increase diversity among the faculty.
And the work of professors like Ogletree, he commented, helped him pursue his interest in public service even in the corporate culture of HLS.
An interest in campaign finance reform also stemmed from his career at the Law School; Bonifaz did thesis work in the subject and founded the National Voting Rights Institute, devoted to litigating campaign finance reform, two years after graduation.
Bonifaz took the Bush case under the auspices of his father’s firm, which normally takes on cases dealing with international environmental and human rights law.
The firm developed the Bush suit because of human rights implications for the soldiers and their families involved, Bonifaz said. He initially approached plaintiffs for the case and more signed on as the suit gained momentum.
“My only son is being sent to war with no debate and no dissent,” said Susan Schumann, a plaintiff in the case and the mother of a Marine. “I was asked by John to join the suit. I talked to my son about it, and he said, ‘If I am a soldier, it’s to defend the constitution and your right to speak out.’”
Tilting at Windmills
Bonifaz’ suit follows several unsuccessful attempts to take the ability to deploy troops out of the President’s hands.
The 1990 action against the Gulf War, brought by 54 members of Congress, was dismissed because the court found that less than ten percent of the legislature was not representative of the whole body.
The ruling also stated that the elder George Bush had not firmly committed the country to a course of action—and conflict that has not been initiated, cannot be preempted.
Suits surrounding the Vietnam War also failed to stop military action because courts ruled that, by appropriating funds and granting extensions to the draft, Congress had implicitly agreed to the action.
The first suits challenging Congress’ ability to tacitly declare war began around Vietnam, many of them brought by now-Dean of the Massachusetts School of Law Lawrence Velvel.
Velvel said the courts can throw out such cases based on standing—the eligibility of plaintiffs to bring suit in the first place—or the “political question” rationale used to dismiss Bonifaz’ suit.
Based on past experience, Velvel said he believes that Bonifaz’s appeal has little chance of succeeding.
“He’s going to lose,” said Velvel. “They [the courts] manipulate labels to reach the results they wish to reach. They absolutely do not wish to decide whether the president has the power to wage a war. The major question is are they willing to undertake to decide what the Constitution requires—and the answer is no.”
The Next Step
Bonifaz said that he intended to file an immediate appeal to the U.S. Court of Appeals for the First Circuit.
“This decision has no basis whatsoever in the Framers’ intent and no support whatsoever in the case law,” he said.
When asked on what specific grounds he’d appeal his case, Bonifaz responded, “All of them. We totally reject the doctrine applied today.”
“We’re appealing to Article 1, Sect. 8 of the U.S. Constitution. Courts have a duty to intervene, and this is not a political question,” he said, citing several other contentious cases, like redistricting, poll taxes and desegregation, that have been tackled by courts.
“They’re not supposed to sideline,” Bonifaz said. “Courts cannot shirk from responsibility when it looks like a political battle.”
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