The North Atlantic Treaty (which establishes NATO) commits each member to mutual defence in case any member is attacked. The treaty has been ratified by the US, so it is legally binding.

My question is, can the US government be legally forced to honor this? For example, if hypothetically a NATO country is attacked and the US refused to help (for some reason, e.g. it has an isolationist President or it doesn't want to escalate the conflict into a world war), can someone go to a US court and make it force the US government to do it? For example, the court might achieve this by making people in the government go to jail if or pay a lot of money they don't do it.

  • What standing would the person have to sue? – user3851 Jan 28 '16 at 18:15
  • @Dawn the person might be the head of state of the invaded ally. – phoog Jan 28 '16 at 18:18
  • @Dawn why wouldn't they have standing? If the head of state doesn't, then perhaps the country itself does. – phoog Jan 28 '16 at 18:39
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    @Dawn How about a US citizen who has businesses in the invaded country? – user69715 Jan 28 '16 at 18:51
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    @Patrick87 That's not right at all. Very few violations of US Code are criminal offences. One can't be arrested for most copyright violations, patent infringement, trademark infringement, violating food labelling laws, failure of an agency to promulgate regulations in time, etc. – user3851 Jan 28 '16 at 20:10

First, the practical answer is no: even if they ordered the President to go to war, the President can just refuse. The military is generally in the habit of listening to orders from the President, particularly if the question is "do we or do we not go to war;" the courts do not have the power to command the armed forces. They could try issuing an injunction instructing the military to go to war, but the injunction would be ignored. They could try holding people in contempt, but the President is in charge of almost all federal law enforcement (and can pardon criminal contempt), so that's not going to work. And even if the President could be punished for contempt, if he thinks intervening will result in the annihilation of the human race in a thermonuclear war, he will not issue the orders.

But that's assuming the courts would even try to intervene. They wouldn't. Courts don't generally want to issue orders that they know will be ignored. In this case, the relief being sought (i.e. an order to do something) is a kind of relief that is up to the discretion of the court. So even if a court would be legally justified in issuing that order, they have an easy out. (For damages claims, Congress can just refuse to appropriate any money to satisfy them; no federal money can be spent unless Congress appropriates it).

There's an even earlier out, though. Courts are not political branches of government; one of the basic rules of jurisprudence is that courts should not get involved in deciding something that's really up to the elected branches. Baker v. Carr had a list of factors to consider:

  1. a textually demonstrable constitutional commitment of the issue to a coordinate political department;
  2. a lack of judicially discoverable and manageable standards for resolving it;
  3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
  4. the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  5. an unusual need for unquestioning adherence to a political decision already made;
  6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Foreign relations in general is very often grounds for deference, as is military strategy. Courts are utterly unqualified to determine proper diplomatic or military actions to take, or to evaluate whether the President's actions were enough to meet the requirement of "do what's necessary to restore security;" foreign policy is a case where a country needs a unified face (because other countries aren't particularly willing to deal with US internal politics), and where the courts could easily screw up what the government is doing; and whether to send Americans to war is a question that is clearly a matter for those accountable to the people. So, federal courts cannot analyze this question to decide whether or not the government has done anything wrong; it's for the other two branches to decide.

Under which law? International law? or US law?

Since you mentioned suing in US courts, US courts are only competent to rule on matters of US law. But it's not clear that a mutual defense provision of a treaty is a matter of US domestic law in the first place.

Second, the North Atlantic Treaty doesn't actually require any specific action be taken.

Article 5

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

(emphasis mine)

So basically, when an armed attack against a party occurs, it is up to each party to decide what action "it deems necessary" to take to assist the attacked party. This could include use of armed force, but also might not. A party could "deem" whatever it wants to as the necessary action, including, possibly, taking no action at all, or just making verbal statements. Every party will just deem whatever action it plans to take as the necessary action. Therefore, it's not really possible for a party to fail to fulfill this provision of the treaty.

Also, the Constitution grants the President the power to command the military, and broad powers over foreign policy, and grants the Congress the power to declare war. The US Constitution supersedes treaties as far as US law is concerned (Reid v. Covert), so US courts could not rule that decisions on how to use the military or foreign policy decisions or the decision whether to declare war are illegal because of a treaty.

As a practical matter, it would have to be an amazing scenario before there was a chance in hell that a court would order it. Some of the basic legal issues: great deference to the President in matters of foreign affairs; ratification of treaties creates an international law obligation but not a necessarily a domestic law obligation; international law is part of the law of the United States under the Charming Betsy doctrine but United States courts rarely care about it; and courts recognize that they should not issue orders which have a serious risk of being not followed.

In theory, it is possible that a court could issue an injunction or perhaps that Congress could impeach the President if his inaction is arguably treason, for example. If the President issues a pardon for an action that he causes knowing in advance it is in violation of law, then there would be a legal question as to whether his pardon in advance is itself conspiracy to commit an impeachable crime. So if you had a real runaway president who was clearly making decisions that were directly treasonous, for example, or ordering others to ignore a court order and then pardoning them, he could be removed by impeachment and support for NATO could be ordered. But if his reasons were colorably for the primary foreign policy interests of the nation and the citizenry, there's no way someone's forcing his hand.

The armed forces do follow the order of the Commander in Chief, but they do that because they, and especially the officer corps, have great respect for the civilian rule of law. They're fighting to defend civilian life and civilian rule. And they've seen what happens in countries where you don't have that. That's part of why they take orders even from presidents they really dislike and why they show respect for the office. Facing a court order to defend an ally and a commander in chief who is committing substantive crimes contrary to the interests of the country, my money is on them defending the ally. (Or maybe resigning.)

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    The bar for impeachment is far lower than treason. – phoog Jan 29 '16 at 3:29
  • Right--hence the "For example." The President's inaction would have to be a high crime or misdemeanor, IIRC. Yes, here it is: "treason, bribery, or other high crimes and misdemeanors" – Tom Jan 29 '16 at 4:56

Well, that's an interesting question.

We are right now in the middle of a closely analogous case: The president ordered a moratorium on immigration from certain countries, and a federal court ruled that this was "unconstitutional". I say this is analogous because it involves a matter of foreign policy that, until 2017, would routinely have been considered at the discretion of the president and not subject to judicial review.

Last I heard the president obeyed the court order and appealed to the Supreme Court, which has not yet ruled. The fact that the president obeyed the court rather than declaring they had no jurisdiction and ignoring them sets a precedent that the courts do indeed have authority to intervene in foreign policy.

So what would happen in your hypothetical situation if someone sued the president, and the courts ruled against the president? It's hard to say, and it would probably depend a lot on the details of the political situation at the time. It would almost certainly create a constitutional crisis, the question is just where things would end up. If the president announced that the court had no authority to declare war -- and this is effectively what they would be doing -- and if a majority in Congress agreed with the president, that might be the end of it. The president ignores the court, and ... nothing happens. The courts could order that the president be arrested for contempt of court. That would surely precipitate a major crisis. Would federal marshals really try to arrest the president? Would the secret service just stand by and watch as federal marshals entered the White House and arrested the president? Would there be a shoot-out between federal marshals and the secret service? The courts could order the military to go to war, but would judges then expect to direct the war from the Supreme Court building? Would the judges debate strategy, order specific targets for bombing, etc? I guess that's not quite as bizarre as it sounds: judges have taken over school districts and city governments and made administrative decisions from the court room. But going to war would be a pretty extreme case.

If Congress wanted to go to war, this would presumably be a pretext to impeach the president. It would be politically much harder for the president to try to ignore an impeachment. That's very clearly within Congress's constitutional authority.

What if the president said, "Ok, you win, we'll go to war", but then he took no steps to actually do it? He could surely stall for a while saying that we are making war plans, mobilizing the troops, stockpiling weapons, etc. At what point would the court say, "Hey, you're just stalling. Go to war NOW"? And then we're back to the, what are they going to do about it? scenario.

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