Arguing that Congress must officially declare war against Iraq before the shooting can start, a Harvard Law School (HLS) graduate recently filed suit against President Bush and Secretary of Defense Donald H. Rumsfeld to prevent Bush from ordering troops into action.

John C. Bonifaz will appear in Massachusetts District Court Thursday seeking an injuction against war in Iraq on behalf of several members of the military, parents of soldiers and six members of the U.S. House of Representatives.

Bonifaz, who graduated from HLS in 1992, contends that Bush must seek a formal declaration from Congress before taking military action in Iraq.

“He’s not a king—he’s the President of the United States, and he must comply with Article 1, Section 8 [of the Constitution.] It says that Congress—and only Congress—has the power to declare war,” he said. “We must stop this outrageously illegal and un-Constitutional move toward war.”

Two earlier suits challenging the executive branch’s ability to send in troops without a declaration of war from Congress—during the Vietnam and Gulf wars—both failed.

But Bonifaz said he is confident that his suit is critically different from earlier suits and should succeed.

Bonifaz said that the two key differences are that he counts several soldiers among his plaintiffs—and that this time, the resolution from Congress was much less specific than prior authorizations of military action that fell short of a declaration of war.

Although the short title of the congressional resolution is Authorization for the Use of Military Force Against Iraq, Bonifaz contends that the debate surrounding the legislation does not reflect a Congressional intent to declare war.

Furthermore, the suit itself says that the resolution unlawfully cedes the ability to go to war to the president.

“The court will consider the facts now before it—a vaguely worded resolution with a legislative record behind it that does not indicate a declaration of war, and that’s it,” he said. “In Vietnam there was extensive Congressional participation. There were military appropriations, there were numerous draft extensions. Here we have no draft, we have no appropriations, only a vague resolution with vague langauge. We have an unprecedented premeditated invasion of another country. In this situation, we must comply with the Constitution.”

Congress last issued a formal declaration of war in 1941 to authorize American involvement in World War II.

Climenko Professor of Law Charles Ogletree said that Bonifaz faces an uphill battle, since courts tend to rule for the executive branch in cases concerned with war.

“John and the people working with him are precisely the kind of people who will fight the long battle to bring sanity in this war,” said Ogletree. “His suit is timely and important, and I think we should use every legal and moral resource we have to prevent our country from entering a war that is more likely to set us back than move us forward.”

A Path Less Traveled

Bonifaz says that his pursuit of public interest law is something of a rarity among HLS grads—and is often discouraged at the school.

“If you stopped someone on the steps of the library and asked what the mission of Harvard Law School is, few people would tell you that it’s to help the poor and disenfranchised, to see that justice would be done,” he said. “Right now they’re saying, ‘You can be in corporate law, you can be a public relations lawyer, you can be a clerk.’ That’s a much more neutral message. Harvard can do better than it has.”

Bonifaz works with his father, who specializes in international, human rights and environmental law.

The firm typically takes on cases for people from developing countries against multinational corporations, such as a case brought by people from several South American countries against Texaco.

Bonifaz also founded and works with the National Voting Rights Institute, which seeks to accomplish campaign finance reform by often filing suit on the grounds that campaign donations directly interfere with people’s voting rights.

Bonifaz remembers Ogletree—who serves on the Institute’s board—as one of few professors who encouraged him to pursue public interest law.

Ogletree shares warm recollections of Bonifaz as well.

“He is one of my favorite all-time students,” Ogletree said who has served on the Institute’s board. “He’s someone who’s deeply committed to public service and the rights of all citizens.”