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David and Goliath
by William Fisher
January 24, 2005

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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 who 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 Powers Act. The Iraq resolution was definite. “Nothing in this joint resolution supersedes any requirement” of the War Powers Act, Congress 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.

In fact, in his 2003 State of the Union address, the president declared: “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.”

Mr. Callan’s suit charges that the president thereby failed to meet the criteria of the War Powers Act -- and 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 earlier this 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 at the Elks Lodge in Odell, Nebraska -- served one term as a Democrat in the 89th Congress, when Lyndon Johnson was president. He has financed his current legal battle from his own pocket -- and thinks it’s money well spent.

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. Justice Scalia said the court should not be so “arrogant” as to believe that our “moral” standards should be applied to interpret the law.

Many conservative pundits agree. For example, in an August 4 edition of The Beltway Boys on Fox News, Fred Barnes, executive editor of the Weekly Standard, not only agreed that President Bush never said there was an imminent threat, but added, he “said the opposite.” 

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. But he is not delusional. “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,” Mr. Callan says.

William Fisher has managed economic development programs in the Middle East and North Africa for the US State Department and the US Agency for International Development, and served in the international affairs area in the Kennedy administration. He can be reached through his blog at:

Other Articles by William Fisher

* The Light is Going Out
* The Moral High Ground?
* Where Will It End?
* The Government We Deserve?