On Libya, where you stand depends on where you sit

“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
— Sen. Barack Obama, interview with the Boston Globe published Dec. 20. 2007

“The Constitution is clear: Except in response to an attack or the imminent threat of attack, only Congress may authorize war and the use of force.”
— Sen. Joe Biden, interview with the Boston Globe published Dec. 20, 2007
“I do not believe that the President can take military action — including any kind of strategic bombing — against Iran without congressional authorization.”
— Sen. Hillary Rodham Clinton, interview with the Boston Globe published Dec. 20, 2007

The United States does not have a parliamentary system, but an old parliamentary adage — where you stand on an issue depends on where you sit, whether on the opposition benches or the government (Treasury) benches — certainly seems appropriate these days.
As the quotes from the 2008 presidential campaign above show, three key decision-makers in the attacks against Libyan air defenses appeared to believe then that congressional authorization is needed before military action can commence. That, of course, was when they were all U.S. senators — not members of the executive branch.
Meanwhile, former House speaker Newt Gingrich appeared to twist himself in knots as he first called for a no-fly zone when Obama was ambivalent and then attacked Obama for the intervention after it was launched. Other potential GOP presidential candidates have also viewed skeptically the military intervention, which one senses might not have been the case if a Republican were president.
Is the president’s action in Libya consistent with his 2007 statement?
The Facts
Boston Globe reporter Charles Savage (now with the New York Times) asked each presidential candidate a simple question:

“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?)”

This was Obama’s full response:

“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 [National Intelligence Estimate] 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.”

Obama’s answer is fascinating on several levels, and shows the pitfalls of asking hypothetical questions of presidential candidates. His response is quite rooted in the policy battles of the day. He also references a controversial intelligence estimate on Iran issued under Bush that intelligence agencies have since backed away from. He clearly is approaching the issue with the mindset of a member of Congress, not of a president.
National Security Council spokesman Tommy Vietor noted that, with Libya, the Senate had unanimously passed a nonbinding resolution calling for the United Nations to impose a “no-fly zone” on March 1. On March 18, he said, Obama briefed congressional leadership on the mission he had in mind, and followed up with a letter regarding the commencement of the military operations.
“A mission of this kind, which is time-limited, well-defined, and discrete, clearly falls within the president’s constitutional authority and thus congressional authorization is not required,” Vietor said. “There is ample precedent for such action, including the air strikes in Bosnia in 1995 that took just over 2 weeks and involved over 2300 U.S. sorties, or the deployment of U.S. forces to Haiti in 1993. This is entirely consistent with what the president said in the 2007, as he was referring to an action like we saw in Iraq.”
The 2003 Iraq invasion actually did have congressional authorization. Obama was not asked about Iraq, but about bombing suspected nuclear sites in Iran, which seems somewhat less than a full-scale invasion. Then-President Bill Clinton in 1998 did not seek congressional authorization before launching four days of targeted strikes on suspected Iraqi illicit weapons sites. The element of surprise, after all, is often essential in such missions.
In the past week, there has been extended commentary on whether Obama’s decision to join in the no-fly zone without explicit congressional authorization was correct, but most experts appear agree that he does not need authorization for this particular operation. That would suggest that his comments in 2007 — and Biden’s and Clinton’s — were incorrect.