PLAINTIFFS LOSE ROUND ONE
Balkans war suit thrown out
Judge dismisses lawsuit,
says plaintiffs lack standing
By Stephan Archer
The lawsuit filed against President Clinton, the Department of Defense and Congress for their part in the bombing of Yugoslavia was thrown out of northern New York State's U.S. District Court after Judge Frederick Scullin decided the plaintiffs lacked standing.
Robert Schulz, a former New York talk show host, and three other co-plaintiffs -- Gary Loughrey, Stephen Oughton, and Milan Pavlovic -- initially had filed the lawsuit calling on President Bill Clinton to stop the war in Yugoslavia. After the war ended, Schulz and the other plaintiffs continued to pursue the lawsuit demanding the court to order the troops -- many of who are still in active duty in Yugoslavia -- home.
Now the plaintiffs will have to appeal to a higher court -- the Federal Court of Appeals -- after finding out yesterday that Judge Scullin has ordered the case be dismissed.
According to the judge's decision, in order to establish standing, "Plaintiffs must show personal injury fairly traceable to Defendants' conduct, which would likely be redressed by the requested relief." The decision further explains that "review of the standing requirement becomes especially rigorous where a federal court is asked to decide whether an action taken by either the Legislative or Executive branches of the federal government was unconstitutional."
Although all the plaintiffs have standing as U.S. citizens and taxpayers, the court early on decided these two claims on their own weren't enough to assert standing.
One of the other claims of standing taken by Pavlovic, a Serbian-American, was that his grandmother lived in Belgrade in close proximity to the zone where U.S. warplanes were dropping bombs. He also claimed standing on the grounds that he owned property near where bombs were falling.
The court, in its response to Pavlovic's claims, conjectured that bombs falling near his family and property didn't illustrate any claim of personal injury and that bombs would actually have to fall on the property for Pavlovic to make such a claim.
"Plaintiff offers nothing more than that 'numerous bombs and missiles are striking in the vicinity of (his) property," the judge's decision explained. "He offers no statement as to how close to his property the bombs and missiles had landed, or with what frequency or intensity. As the Supreme Court noted in Whitmore (v. Arkansas), 'allegations of possible future injury do not satisfy the requirements. ...'"
Pavlovic was not available for comments on the case as he is currently in Yugoslavia protesting the regime of Slobodan Milosevic.
The court further used the Whitmore case in Oughton's and Loughrey's claim of standing. Oughton, a reservist with the 109th Air National Guard stated that although his unit had not been activated at the time of the lawsuit, it could be activated in the foreseeable future. The court stated this wasn't enough to credit Oughton with standing.
Loughrey had similar claims to Oughton in that he is retired from the Air Force Reserves and faces the possibility of being recalled to active duty in the Balkans. Loughrey further claimed that as a commercial pilot and shareholder of US Airways, his financial opportunities were put at risk because reserve units, which included a number of pilots and aircraft maintenance personnel for US Airways, were activated in the Balkans. The court again turned down these claims with Whitmore.
Commenting on the court's decision, Schulz said, "If the judge says we have no standing, then no one does, and if no one has standing, then there is an impenetrable barrier to judicial review of actions by the political branches, meaning the executive and legislative branches."
Schulz told WorldNetDaily that he has taken Abraham Lincoln's suggestion to heart and has made the U.S. Constitution his religion. Schulz pointed out this doesn't mean he has put the Constitution above his belief in God. He simply views the Constitution as the supreme law of the land by which all other laws should be judged.
"I've devoted the last 20 years of my life to carefully evaluating governmental behavior, comparing with the constitution of the state and the U.S. Constitution and then confronting unconstitutional acts by anyone in government wherever we find them. That's what citizenship is supposed to be all about," Schulz said.
Explaining, then, the reason why the court should grant him standing, Schulz said, "I said in our brief, ... I have standing. I'm harmed differently in kind and degree than the community at large because the Constitution is my religion. And the violation by the defendants -- constitutional violations of the War Powers clauses -- by the President and Congress in this case, harms my personal attachments and profound personal beliefs. I am deeply injured by this."
Schulz explained that his "personal attachments" include his daughter who is in the Air Force Reserves, his son-in-law who is on active duty with the Air Force and his three sons who are all of draft age. Regarding the constitutional violations of the War Powers Act, Schulz and the other plaintiffs have also made the claim that the War Powers Act itself is unconstitutional.
Even so, Scullin ruled the plaintiffs' reason for the lawsuit was inadequate. Schulz said the judge even stated he couldn't find any case authority, meaning the issue has never arisen before in any court in the U.S.
"What he's saying is this is a first impression case," Schulz said. "He's saying he can find no case authority to support his conclusion. Well look, the primary role of the courts is to see that the will of the people, especially as it is expressed in the Constitution, gets applied to the other two branches of government. There was a first time on every issue. If all the judges took the position that a case had never come up before, where would that lead us?"
Commenting once more on what he perceived to be his constitutional rights to question government's actions, Schulz said, "The courthouse doors should not be closed to citizens seeking justice in the form of insisting that the constitutional forms and norms be followed in a matter as important as war and peace."