                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        JUL 22 2003
                                    TENTH CIRCUIT
                                                                   PATRICK FISHER
                                                                             Clerk

 ROBERT O’CONNOR,

          Plaintiff - Appellant,
 v.

 UNITED STATES OF AMERICA;
 GEORGE W. BUSH, JR., President of
 the United States; UNITED STATES
 ARMED FORCES, Joint Chiefs of
                                                       No. 02-2311
 Staff; UNITED STATES MARINE
                                             (D.C. No. CIV-02-1274 BB/LFG)
 CORPS, Commandant;
                                                        (D.N.M.)
 DEPARTMENT OF THE NAVY,
 Chief of Staff; ARMY, Chief of Staff;
 DEPARTMENT OF THE AIR
 FORCE; DEPARTMENT OF
 DEFENSE, Donald Rumsfeld,
 Secretary of Defense,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before EBEL, HENRY and HARTZ, Circuit Judges.



      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
      Robert O’Connor, proceeding pro se, appeals the district court’s dismissal

of his lawsuit against the president of the United States and certain officials,

military and civilian, responsible for the nation’s military operations. He

challenges the constitutionality of the invasion of Iraq by the armed forces of the

United States. The district court dismissed his complaint because it presented “a

classic example of a non-justiciable political question.” O’Connor also has filed

a motion to proceed in forma pauperis and a petition seeking a writ of prohibition

directed against the defendants. We AFFIRM the district court’s dismissal of his

case, GRANT the motion to proceed in forma pauperis, and DENY O’Connor’s

petition for a writ of prohibition.

                I. Appeal of District Court’s Dismissal of the Case

      In his complaint, O’Connor alleges, somewhat cryptically, that “[t]he War

on Iraq which Congress by resolution gives authority to the President to wage war

on Iraq is unconstitutional because waging war on Iraq is a subterfuge for the

U.S. Government to wage war on its own citizens by releasing A.B.C. warfare on

Americans and blaming it on Iraq.” He asks the federal courts “to declare the war

on Iraq unconstitutional” and seeks an injunction requiring the defendants to

“cease and desist . . . from waging war on Iraq.” 1 We review de novo the district


      1
          O’Connor filed his complaint on October 9, 2002, several months before
                                                                     (continued...)

                                         -2-
court’s application of the political question doctrine to O’Connor’s complaint.

Custer County Action Ass’n v. Garvey, 256 F.3d 1024, 1030–31 (10th Cir. 2001).

         Both constitutional and prudential concerns counsel courts not to hear cases

presenting “political questions.” Schroder v. Bush, 263 F.3d 1169, 1173 (10th

Cir. 2001) (citing Baker v. Carr, 369 U.S. 186, 210 (1962)). “When deciding

whether issues present political questions, courts must make a discriminating

inquiry into the precise facts and posture of the particular case, for it resists

resolution by any semantic cataloguing.” Id. at 1173–74 (internal quotation marks

omitted). Because “there is no blanket rule, application of the doctrine must be

made on a case-by-case basis.” Id. at 1174 (internal citations and quotation marks

omitted).

         The Supreme Court provided its most detailed discussion of the political

question doctrine in Baker v. Carr, 369 U.S. 186 (1962). In that case the Court

wrote,

         Prominent on the surface of any case held to involve a political
         question [will be] found a textually demonstrable constitutional
         commitment of the issue to a coordinate political department; or a



       (...continued)
         1

U.S. military forces attacked Iraq in March 2003. We also note that on May 1,
2003, President Bush stated that major combat operations in Iraq had ended.
David E. Sanger, “Aftereffects: The President; Bush Declares ‘One Victory in
War on Terror,’” N.Y. Times, May 2, 2003, at A1. Because we resolve this case
on other grounds, we do not address whether these facts raise standing or
mootness problems for O’Connor’s lawsuit.

                                          -3-
      lack of judicially discoverable and manageable standards for
      resolving it; or the impossibility of deciding without an initial policy
      determination of a kind clearly for nonjudicial discretion; or the
      impossibility of a court’s undertaking independent resolution without
      expressing lack of the respect due coordinate branches of
      government; or an unusual need for unquestioning adherence to a
      political decision already made; or the potentiality of embarrassment
      from multifarious pronouncements by various departments on one
      question.

Id. at 217.

      The presence of several of the Baker factors indicate that O’Connor’s

complaint presents a political question. His complaint argues that the war on Iraq

is unconstitutional because of the intentions of the President and the armed forces

in waging it. Yet the text of the Constitution commits the power to employ the

nation’s armed forces in war to Congress and the President. Congress has the

power to declare war, to raise and support armies, to provide and maintain a navy,

and to make rules governing these military bodies. U.S. Const. art I, § 8, cls. 11,

12, 13, 14. The Constitution also names the President as the commander-in-chief

of the military forces. Id. art. II, § 2, cl. 1. And we can identify no judicially

discoverable standards that would permit a court to determine whether the

intentions of the president in prosecuting a war are proper. The Constitution does

not speak to the question of what objectives are permissible when waging war.

Such an inquiry would require courts to make a policy determination that is of a

kind clearly for nonjudicial discretion. As we have said before, “courts afford the


                                          -4-
political branches of government a particularly high degree of deference in the

area of military affairs, because the Constitution expressly confers authority over

the military on the executive and legislative branches.” Garvey, 256 F.3d at 1031.

For these reasons, we conclude that O’Connor’s lawsuit raises a non-justiciable

political question.

      On appeal, O’Connor advances a legal theory he did not raise below: that

the war on Iraq is unconstitutional because the president acted without a formal

declaration of war by Congress. (Aplt. B. at 2.) Mindful that we hold pro se

actions to less rigorous standard of review, see Hunt v. Uphoff, 199 F.3d 1220,

1223 (10th Cir. 1999), we nonetheless decline to consider this issue because

O’Connor did not raise it before the district court, see Walker v. Mather (In re

Walker), 959 F.2d 894, 896 (10th Cir. 1992) (applying “the general rule that ‘a

federal appellate court does not consider an issue not passed upon below’”)

(quoting Singleton v. Wulff, 428 U.S. 106, 120 (1976)). 2


      2
        In declining to consider O’Connor’s argument on appeal that the
president’s prosecution of the war on Iraq was unconstitutional because Congress
had not issued a formal declaration of war, we express no opinion on the merits of
that argument except to observe that the federal courts have left the question
largely unexplored. See, e.g., 1 Laurence H. Tribe, American Constitutional Law
659 (3d ed. 2000) (“Our legal history . . . is almost barren of judicial
pronouncements regarding the legitimacy of such executive behavior.”). But see
Doe v. Bush, 257 F. Supp. 2d 436, 438–40 (D. Mass. 2003) (holding that federal
courts may consider the constitutionality of military action by the president if “it
become[s] apparent that the political branches . . . are clearly and resolutely in
                                                                         (continued...)

                                         -5-
                       II. Petition for a Writ of Prohibition

      O’Connor attaches to his brief on appeal a petition for a writ of prohibition.

By statute, the power of federal courts to issue extraordinary writs is confined to

those “necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). A writ of

prohibition is a “‘means of confining an inferior court to a lawful exercise of its

prescribed jurisdiction . . . .’” In re Missouri, 664 F.2d 178, 180 (8th Cir. 1981)

(quoting Missouri v. United States Bankruptcy Court, 647 F.2d 768, 770 n.3 (8th

Cir. 1981)); see also Parr v. United States, 351 U.S. 513, 519 (1956) (stating that

writs of prohibition and mandamus “may only go in aid of appellate jurisdiction”).

That the function of a writ of prohibition is to correct a lower court’s exercise of

jurisdiction is illustrated by our Circuit’s test for granting the writ, which is

focused on the actions of lower courts:

      “[A] writ of prohibition is a drastic and extraordinary remedy which
      should be granted only when the petitioner has shown his right to the
      writ to be clear and undisputable and that the actions of the court
      were a clear abuse of discretion.” Sangre De Cristo Community
      Mental Health Serv., Inc. v. United States (In re Vargas), 723 F.2d


      2
        (...continued)
opposition as to the military policy to be followed by the United States,” but that
in the case of the recent Iraq war, the constitutionality of the military action
raised a non-justiciable political question because no such inter-branch conflict
existed in light of the October 16, 2002 Congressional Resolution, Pub. L. No.
107-243, authorizing the President Bush’s actions) (citing Massachusetts v. Laird,
451 F.2d 26, 34 (1st Cir. 1971)).

                                          -6-
       1461, 1468 (10th Cir. 1983). This court looks to five nonconclusive
       factors when determining whether to grant the writ: (1) the party
       seeking the writ must have no other adequate means to secure the
       relief desired; (2) the petitioning party will be damaged or prejudiced
       in a way not correctable on appeal; (3) the district court’s order
       constitutes an abuse of discretion; (4) the district court’s order
       represents an often-repeated error and manifests a persistent
       disregard of the federal rules; and (5) the district court’s order raises
       new and important problems or issues of law of first impression.

Univ. of Texas at Austin v. Vratil, 96 F.3d 1337, 1339 (10th Cir. 1996) (Order)

(emphasis added) (citation omitted).

       O’Connor is not entitled to a writ of prohibition because he does not direct

the writ toward the judicial action of a lower court. He seeks a writ of

prohibition against the defendants, the president and certain of his military and

civilian subordinates, to stop them from engaging in hostilities in Iraq. O’Connor

is not seeking to correct a jurisdictional error of the district court, nor is this a

case where appellate review is defeated if a writ does not issue. Therefore, a writ

of prohibition is not an available remedy. See Parr, 351 U.S. at 520 (declining to

issue a writ of prohibition or mandamus because “[t]his is not a case where a

court has exceeded or refused to exercise its jurisdiction, nor one where appellate

review will be defeated if a writ does not issue.”) (citation omitted).

       Even if a writ of prohibition could be directed toward the acts of executive

officials, O’Connor has not made the requisite showing in his petition that he is

entitled to the writ under these circumstances. We require that a petitioner


                                           -7-
“show[] his right to the writ to be clear and undisputable.” Vratil, 96 F.3d at

1339 (internal quotation marks omitted). Because O’Connor has not made this

showing, we decline to exercise our discretion to issue a writ of prohibition. See

Parr 351 U.S. at 520 (“The power to issue [extraordinary writs] is discretionary

and it is sparingly exercised.”).

                                      * * *

      For the reasons stated, we AFFIRM the decision of the district court

dismissing O’Connor’s case. O’Connor’s motion to proceed in forma pauperis is

GRANTED, and his petition for a writ of prohibition is DENIED. All other of

O’Connor’s motions are DENIED.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                         -8-
