Serbia war lawsuit still under way

Although the bombing in Yugoslavia by U.S. and NATO forces ended well
over a month ago, a lawsuit filed against President Bill Clinton over
the “illegal” war may be far from over.

As was earlier reported by WorldNetDaily,
Robert Schulz, a former New York talk show host, and three other
co-plaintiffs — Gary Loughrey, Stephen Oughton, and Milan Pavlovic —
filed a lawsuit against President Clinton, the Department of Defense,
and Congress for their part in the bombing of Yugoslavia. The lawsuit
was filed in a U.S. District Court in northern New York State. Judge
Frederick Scullin has been assigned the case.

The defendants in the case, in their motion to dismiss, have argued the
lawsuit is moot because the airstrikes against Yugoslavia are over. They
have also stated that the requests for relief by Schulz and his fellow
plaintiffs is unprecedented.

“Plaintiffs, none of whom have been injured by the completed air
operations against the Federal Republic of Yugoslavia (Serbia and
Montenegro) (“FRY”), are asking this Court to do what no other court has
done — namely, enjoin the president from authorizing ‘offensive
military acts’ against FRY, and to declare unconstitutional various acts
of the Congress and the Executive Branch relating to the use of military
forces in the FRY. The primary relief that plaintiffs seek — the
cessation of military airstrikes in the FRY — has already been
accomplished, and this Court lacks jurisdiction to hear any of
plaintiffs’ claims,” says the defendants’ dismissal motion.

“We’re asking the Court to order those troops back home until Congress
sends them back,” said Schulz pointing out that U.S. troops are still in
active duty in Yugoslavia.

Schulz said even if the judge sides with the defendants on the point of
mootness, he and the three other plaintiffs have already filed a
memorandum in opposition to the defendants’ motion to dismiss saying the
case should then be heard on the premise the issue falls within the
exemption to the Mootness Doctrine. The exemption to the Mootness
Doctrine, Schulz explained, will allow the Court to continue hearing a
case if the matter is likely to recur and if the matter evades judicial
review.

Regarding the issue of likely recurrence, Schulz said, “We have said the
situation whereby a president engages the armed forces of the United
States in a non-defensive action against a foreign nation is likely to
recur, and we listed how many times it happened since World War II
without congressional authorization. This president, as an example,
bombed Sudan, Afghanistan, and other countries.”

The matter has also evaded judicial review, according to Schulz.

“Often, in most of these instances, bombs were dropped — Cambodia is an
example — without any advance notice to us. We couldn’t get into
court,” Schulz explained. “We had to wait until we were already harmed,
and that’s usually the case.”

Besides arguing on grounds of mootness, the defendants have also argued
the plaintiffs lack standing. Their motion to dismiss argues that “a
District Court in the District of Columbia recently dismissed claims
brought by some Members of Congress
similar to the ones presented here, based on plaintiffs’ lack of
standing. The court noted the reluctance of other courts … to interfere
with relations between the political branches of government on issues of
war and peace.”

However, Schulz and the other plaintiffs, in their opposition to
dismiss, said they did in fact have standing because they were taxpayers
of the United States.

An important difference, though, between this case and the one brought
by “some Members of Congress” is that in this case, the Congress is one
of the defendants. In the other case, Congress couldn’t sue itself.

Another difference between the two cases is that in the congressional
suit, Congress declared the president was in violation of the War Powers
Resolution. In this current case, Schulz is saying that not only is the
president, Congress and the Defense Department in violation of the War
Powers Resolution, the War Powers Resolution itself is unconstitutional.

“Until this case, the constitutionality of the War Powers Resolution was
never tested,” said Schulz of the suit.

Speaking of the opposition to the defendants’ motion to dismiss, Schulz
said, “I think we successfully argued before the Court that the harm is
ongoing — the constitutional harm and personal harm is ongoing. Even if
it weren’t, it’s likely to recur and evade judicial review.”

WorldNetDaily contacted some of the lawyers working on the defense case
at the Department of Justice, but spokespersons for the Department of
Justice said they couldn’t answer any questions.