Appeals Court DIDN'T throw out lawsuit on war powers declaration : Indybay

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John Bonifaz is the lead attorney for plaintiffs in a suit against a U.S. war on Iraq without Congressional approval. Initial media reports of the appeals court decision were misleading. The case isn't dead in the water. It's unclear just how much of a thorn in the Dubya Whitehouse the case will prove to be, but the story is still developing.

John Bonifaz was on WBAI's Wake-up Call today. The segment is attached, mp3 format.

The Reuters story below is an example of backpedaling by media.

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Legal Bid to Block War Rejected by U.S. Court
Thu March 13, 2003 03:47 PM ET
By Greg Frost
http://reuters.com/newsArticle.jhtml?type=politicsNews&storyID=2377470

BOSTON (Reuters) - A U.S. appeals court on Thursday upheld a lower court ruling rejecting a legal bid by a group of soldiers and lawmakers to keep President Bush from invading Iraq without a formal declaration of war by Congress.

But the lawyer who filed the lawsuit said its rejection by a three-judge panel of the 1st U.S. Circuit Court of Appeals contained a silver lining that could allow him to bring the case back depending on the outcome of U.N. diplomacy.

"This case is still very much alive," John Bonifaz, the plaintiffs' lead attorney, told Reuters.

Unlike U.S. District Judge Joseph Tauro, who threw out the case on political grounds last month, the appeals court dismissed the lawsuit on "ripeness" grounds -- essentially saying the timing was not right for it to get involved.

Bonifaz said that meant he could take the matter back to court depending on a number of unresolved issues -- including whether the U.N. Security Council authorizes the use of force in Iraq.

"If the president moves us closer to war without U.N. authorization, this case will be ripe for the court's review and will demand judicial intervention to prevent an illegal and unconstitutional war," he said.

The Department of Justice did not immediately comment on the ruling.

Some 200,000 U.S. and 50,000 British troops are poised to invade Iraq, and Bush has vowed to go to war to disarm Iraq without U.N. backing if necessary.

The United States said on Thursday it might drop its search for a Security Council majority to authorize an invasion of Iraq as its diplomatic efforts encountered new setbacks.

COURT LEAVES DOOR OPEN

The civil lawsuit, brought by three members of the military, six parents of U.S. troops and members of the U.S. Congress, sought an injunction to stop potential U.S. military action on the grounds that only Congress has the right to declare war.

The suit, which named Bush and Defense Secretary Donald Rumsfeld as defendants, said the framers of the U.S. Constitution aimed to deny presidents the imperial war-making powers of European monarchs.

Although Congress passed a resolution in October backing the possible use of U.S. military force against Iraq, the plaintiffs said that was an unconstitutional measure and did not amount to a formal declaration of war.

Tauro found in his ruling that the lawsuit boiled down to "political questions ... which are beyond the authority of a federal court to resolve."

Judge Sandra Lynch, writing for the appeals court, disagreed with that reasoning and cited the question of "ripeness," or timeliness. While the panel dismissed the case, it left open a door for the plaintiffs.

"This conclusion does not necessarily mean that similar challenges would never be ripe for decision before military action began," she wrote in a footnote to the ruling. "Here, too many crucial facts are missing."

Lynch noted the Iraq situation remained fluid and that "many important questions remain unanswered" about whether a war would actually take place. The answers to those questions, she indicated, could ultimately make the case ripe.

Appeals Court DIDN'T throw out lawsuit on war powers declaration

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