Is Obama's War on Libya Constitutional?

President Obama should come with an answer to candidate Obama's presidential power concerns.

By SHARE

The most pointed and damning criticism of President Barack Obama’s military excursion into Libya comes not from the peacenik left or the truculent right (who grumble about the Obama being less aggressively hawkish than France, as if a cultural punch-line-- the French are militarily inept!--should be a benchmark for war-making). No, the critique that I am interested in hearing President Obama respond to comes from candidate Barack Obama.

[ See editorial cartoons about President Obama.]

As a sitting senator and mere would-be president, back in December, 2007, Obama answered a number of questions from my old Boston Globe colleague Charlie Savage about presidential power. Asked about the circumstances under which a president could bomb Iran, Senator Obama gave an unequivocal answer about the limits of presidential authority generally (h/t Glenn Greenwald via Michael Lind):

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.

This answer is rooted in the fact that while the Constitution puts the president in charge of the armed forces, but gives the war-making power to Congress (note too that Obama said not that the president lacks the authority to go to war, but to authorize any sort of military attack--a fine distinction but one that is being made). So Obama’s 2007 response doesn’t leave much room for bombing Libya, with or without United Nations authorization: No one has argued that bombing Libya deals with an actual or imminent threat to the United States. [ See photos of the Obamas behind the scenes.]

Of course circumstances have changed in the nearly three-and-a-half years since Obama released that statement. Specifically his job has changed from legislator trying to succeed a president who resurrected the imperial presidency and shot it up with steroids to actually, you know, being president. And history shows that not matter how good a politician is about limiting executive authority before they enter the White House, they jealously guard and try to expand upon that authority once its theirs. [ See photos of the Obamas abroad.]

Greenwald points out in Salon:

The arguments made to justify such unilateral presidential action are uniquely unpersuasive.  Former Bush OLC official and Harvard Law Professor Jack Goldsmith, along with others, points to Clinton's air bombing campaign of Kosovo without Congressional approval, but the mere fact that X happened in the past does not mean X is justifiable; that would be like pointing to FDR's internment of Japanese-Americans to argue that Presidents are constitutionally empowered to imprison American citizens on U.S. soil without due process.

For all that George W. Bush did to imperialize the presidency, he actually took the time to ask Congress for authorization before invading Afghanistan and Iraq. [ Take the U.S. News poll: Could Libya turn into the next Iraq?]

Look, I’m not wild about getting militarily involved in a third Muslim country. But I supported Obama’s candidacy on the theory that he had showed good judgment, so I’m willing to give him the benefit of the doubt on this, provided he goes about it constitutionally. And it would be nice in the mean time if some members of Congress beyond the peacenik left (hello Dennis Kucinich) would show a bit of spine and get a straight answer about where the president gets the authority to start bombing other countries. Instead the best we get is the House’s fourth-ranking Democrat, John Larson, worrying that the president is following the letter but not the spirit of the War Powers Act. [Check out a roundup of political cartoons on the Middle East protests.]

Exit question: I thought the Tea Party was all about constitutional original intent and limiting the power of the federal government. Shouldn’t they be leading the defense of Congress’s constitutional role in war-making?