War Powers Resolution: Libya

Constitutional Interpretation Depends on Where You Sit and When You Act

By Jack Goldsmith
Friday, March 18, 2011, 1:08 AM

Michael Stransky’s email led me to reread the questions Charlie Savage asked Senators Obama and Clinton in late 2007.  The question and answers are worth considering in full.  Savage asked:

In what circumstances, if any, would the president have constitutional authority to bomb Iran without seeking a use-of-force authorization from Congress?  (Specifically, what about the strategic bombing of suspected nuclear sites -- a situation that does not involve stopping an IMMINENT threat?)

Senator Obama answered:

The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.

As Commander-in-Chief, the President does have a duty to protect and defend the United States.  In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent.  History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch.  It is always preferable to have the informed consent of Congress prior to any military action.

As for the specific question about bombing suspected nuclear sites, I recently introduced S.J. Res. 23, which states in part that “any offensive military action taken by the United States against Iran must be explicitly authorized by Congress.” The recent NIE tells us that Iran in 2003 halted its effort to design a nuclear weapon. While this does not mean that Iran is no longer a threat to the United States or its allies, it does give us time to conduct aggressive and principled personal diplomacy aimed at preventing Iran from developing nuclear weapons.

Senator Clinton answered:

The President has the solemn duty to defend our Nation. If the country is under truly imminent threat of attack, of course the President must take appropriate action to defend us. At the same time, the Constitution requires Congress to authorize war. I do not believe that the President can take military action – including any kind of strategic bombing – against Iran without congressional authorization. That is why I have supported legislation to bar President Bush from doing so and that is also why I think it is irresponsible to suggest, as some have recently, that anything Congress already has enacted provides that authority.

It will be interesting to see how Obama and Clinton distinguish these statements, which argue that unilateral military intervention in anything less than imminent self-defense is unconstitutional, from their support for unilateral intervention in Libya, which does not involve self-defense.  I predict they will distinguish them by invoking the Libya UNSCR, which, they will argue, was not present in 2007 for Iran but is now present for Libya.  I will explain why the Libya UNSCR supports the domestic constitutional power to intervene shortly.