His name is Clare Callan. He is a feisty 85-year-old former congressman from rural Nebraska. And he is asking the U.S. Supreme Court to declare that Pres. George W. Bush had no legal authority to go to war in Iraq.
Callan does not see himself as some kind of Don Quixote, haplessly tilting at windmills. He is not asking the Supreme Court to end the war. Callan himself is a World War II veteran, who served on a Navy destroyer in the Pacific.
He says he is proud of the U.S. military, proud of his own service, and proud of the troops fighting in Iraq. But he believes that the president violated the Constitution when he sent U.S. soldiers into harm’s way. Now, he wants the nation’s highest court to say so.
"I’m not wet behind the ears," Callan said in an interview. "I know how Washington works. So I have no great expectations that my point of view will prevail. But I have an obligation as a citizen to do what I can. If we don’t use the freedoms we have, they’ll disappear."
Other lawsuits have been brought by parents of U.S. soldiers and members of Congress challenging the authority for the invasion without an explicit congressional declaration of war, but none have gotten far.
Callan’s case goes like this:
When Congress passed the Iraq Resolution in Oct. 2002, the legislators specifically made it subject to the War Powers Resolution of 1973, known as the War Powers Act. The Iraq resolution was definite. "Nothing in this joint resolution supersedes any requirement of the War Powers Resolution," it reads.
Rather than giving Pres. Bush the authority to take the nation to war, Callan believes, it granted him only the right to determine whether the standards laid out by the War Powers Act 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 U.S. security. The words "clear" and "imminent" are used repeatedly to describe situations where U.S. military force is permitted.
In the run-up to the invasion and ever since Pres. Bush went out of his way to avoid using the words "clear" and "imminent," Callan says. Bush described the threat from Iraq with adjectives like "growing" and "gathering."
While some of his surrogates, including his then press secretary Ari Fleisher, declared the threat "imminent," the president never did.
In essence, Callan’s suit, filed in a U.S. circuit court three years ago, charges that the president failed to meet his constitutional obligation.
It has been rejected and appealed multiple times since then, with lower courts ruling that they lacked jurisdiction to hear his complaint, or that he had no legitimate cause of action.
Callan argues that he is only asking the courts to interpret an act of Congress based on "plain language and common sense."
"Courts do not lack the power and the ability to make the factual and legal determination of whether this nation’s military actions constitute war for purposes of the constitutional War Clause," Callan said, and has cited numerous precedents in his filings.
When the Supreme Court met last month to pick the cases for its upcoming calendar, it, too, rejected Callan’s petition. Undeterred, he is now preparing a petition for rehearing, and hopes the justices will finally listen.
Callan, whose favorite pastime is talking politics with his fellow veterans at the Elks Lodge in Odell, Nebraska, served one term as a democrat in the House of Representatives from 1965-66, 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 served as his own attorney in the current legal battle, financing it from his own pocket and insists it is money well spent.
"We all saw what happened when President Johnson fabricated a pretext for going to war in Vietnam," he said. "The War Powers Act was passed to prevent future presidents from doing that ever again."
Ironically, some of the nation’s best-known conservatives have bolstered Callan’s arguments.
In an Aug. 4, 2004 broadcast of "The Beltway Boys" on Fox News Channel, panelists agreed that Bush had never labeled the Iraqi threat "imminent" only "urgent."
Morton M. Kondracke, executive editor of Roll Call newspaper, 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 influential neoconservative Weekly Standard, agreed: President Bush "said the opposite." Senator Jon Kyl, a Republican from Arizona, said in a speech last March that "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 by arguing that the war in Iraq has made us safer, Callan says.
However, as Supreme Court Justice Antonin Scalia has pointed out, "Right is not necessarily legal."
"The Founding Fathers were very clever in the way they designed our government three branches, with checks and balances on each," Callan said.
"These can’t be ‘outsourced.’ None of the three branches should delegate its rights and responsibilities to any other branch. If that happens over a long period, we’ll find ourselves with a king instead of a president."