The president does not need authorization from Congress before launching a military offensive — so said Vice President Dick Cheney and other advisers to President George W. Bush in the summer of 2002 as that administration prepared to use force to topple Saddam Hussein.
When Bush’s spokesman Ari Fleischer said the president would consult with members of Congress before any attack on Iraq, a reporter asked “does ‘consult’ mean ask permission?” Fleischer replied with a non-answer, saying, “the president will consult with Congress because Congress has an important role to play.”
At the urging of Senate Majority Leader Tom Daschle and others, Bush did, in the end, seek a vote by Congress to authorize his attack on Iraq and he got that authorization in October 2002.
In the case of Libya, President Barack Obama has consulted with congressional leaders, but sought no authorization for his military operation against Col. Moammar Gadhafi's regime.
No permission needed?
At a press conference in Chile on Monday Obama gave no indication that he thought any congressional authorization was needed.
In his two major statements on Libya in the past few days, one Friday at the White House and the other in Brazil on Saturday, the president made only one passing reference to Congress, saying “I've acted after consulting with my national security team, and Republican and Democratic leaders of Congress.”
Obama’s stance is striking: not only hasn’t he addressed the question of congressional authorization, but acting without it appears to be at odds with what he stood for when he ran for president.
“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,” Obama told the in 2007.
Obama has not argued that Gadhafi is “an actual or imminent threat” to the United States, only to the Libyans who oppose him.
Instead of seeking a vote by Congress to affirm his actions, Obama repeatedly cited as his authority the United Nations Security Council resolution passed last week.
This was, he said Monday, “an international mandate from the Security Council that specifically focuses on the humanitarian threat posed by Col. Gadhafi to his own people.”
Obama cites 'international legitimacy'
He argued that “the way that the United States took leadership and managed this process ensures international legitimacy.” Alluding to the Iraq war, he said “in the past there were times when the U.S. acted unilaterally or did not have full international support.”
He pledged in Brazil on Saturday that “we will not deploy any U.S. troops on the ground” and emphasized Monday that the American role would be growing smaller “in a matter of days and not in matter of weeks” as other nations take part in enforcing a no-fly zone over Libya.
He portrayed the relatively limited U.S. role as a cost-saving measure, saying that “our military is already very stretched” and argued that air strikes by France and other nations “relieves the burden on U.S. taxpayers.”
In a letter to congressional leaders Monday, Obama claimed that his actions in Libya "are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive."
He said he was giving Congress notice under the provisions of the 1973 War Powers Act.
But his letter didn't note that the 1973 law allows the president to use military force only when there is an attack on the United States or when Congress has voted to declare war or to authorize military operations. Every president since Richard Nixon has claimed the War Powers Act is an unconstitutional infringement on the president's powers.
Obama’s military offensive without congressional authorization raises familiar questions about when a president can and cannot order bombs to be dropped, missiles to be launched and troops to be landed on foreign soil.
Congress in the current case seems very much left on the sidelines, even though some members, including Sen. Richard Lugar, R-Ind. are complaining that Obama is ignoring the legislative branch.
Lugar is significant because he’s an old ally of Obama’s from his term in the Senate, he traveled to Russia with Obama, and he worked with him on arms control efforts.
Lugar wonders about Obama's objectives
“I’ve said from the beginning the plan is not simply there; the objective, the endgame is not apparent,” he told NBC’s Andrea Mitchell on Monday. “What is the objective? What is the plan?”
“The American people, through the Congress, need to hear what our president believes his objectives are," Lugar said. "He has indicated he has constitutional power to do what he has done to date, but I would simply argue that if we are going into war with Libya, we should declare war on Libya, we should pull together with our allies and try to figure out a plan of how that war is to be won … and likewise what happens after it is won.”
Lugar asked whether Obama’s plan for Libya involved economic aid and nation building. These questions deserve to be debated in Congress, he said.
Sen. Jim Webb, D- Va., told Mitchell “we have not put this issue in front of the American people in any meaningful way. The president is in Rio; the Congress is out of session.”
“We have been on autopilot for almost ten years now in terms of presidential authorization in conducting these type of military operations absent the meaningful participation of the Congress. We have not had a debate … This isn’t the way that our system is supposed to work.”
He also blamed Obama for not clearly telling Congress and the America people what the “end point” of the Libyan operation will be or should be.
Republican Sen. Rand Paul of Kentucky, on a tour of South Carolina, one of the early 2012 primary states, said, “You should ask the question, 'Is Libya a threat to our national security?' I'd like to have that debate." Paul's remarks were first reported by The Charleston Post and Courier.
Also left very much as mere bystanders were the potential 2012 GOP presidential hopefuls, most of whom have remained mum. But former House Speaker Newt Gingrich did say it was "impossible to make sense of the standard for intervention in Libya except opportunism and news media publicity."
Mixed record of past presidents
The record of Obama’s three immediate predecessors shows that presidents launch military operations sometimes with congressional authorization and sometimes without.
In the case of the first Iraq war in 1991, the second Iraq war in 2003, and the Afghanistan war in 2001, the president sought and obtained prior congressional authorization.
Congress refused to to give its authorization to President Bill Clinton in three separate instances — the deployment of peacekeeping troops to Haiti in 1994, the deployment of peacekeeping troops to Bosnia in 1996, and U.S. involvement in the NATO air war against the Yugoslav regime in 1999 — but he acted nonetheless.
In 1986 when President Ronald Reagan ordered air strikes on Libya in retaliation for the bombing of a Berlin nightclub frequented by American servicemen in which one U.S. sergeant was killed, he conferred with congressional leaders but did not seek a vote to authorize his action.
"Self-defense is not only our right, it is our duty," Reagan told the American people.
War critics outside one administration sometimes later find themselves inside a succeeding administration.
For example in 2002, Yale law professor Harold Hongju Koh, who is now serving as legal adviser of the Department of State, said in August 2002 that Bush needed to go to Congress and get consent for invading Iraq. “The constitutional structure tries to make war hard to get into, so the president has to show leadership and make his case to the elected representatives.”
But congressional authorization by itself doesn’t end all the political problems. Having given their consent, some members of Congress sometimes get cases of buyer’s remorse.
House Democratic Leader Dick Gephardt said of Bush in February 2003, weeks before the invasion of Iraq, “He needs to go to the American people carefully and explain what this is going to entail, what support we have from other countries before we go into this action, and who’s going to be there with us in the aftermath. The aftermath of this is going to be very difficult.”
It was too late — Gephardt had already voted to authorize Bush to use force. And Gephardt proved to be right: the aftermath was “very difficult.”
When Rep. Tom Campbell and 30 other members of Congress filed a lawsuit against Clinton in 1999 for waging launching unauthorized military attacks against the Yugoslav government, a federal appeals court ruled the members had no standing to sue.
Members of Congress, the court wrote, don’t need to resort to suing the president because they “enjoy ample legislative power to have stopped prosecution of the ‘war’ ... Congress always retains appropriations authority and could have cut off funds for the American role in the conflict."
So too, in theory, disgruntled members of Congress could now vote to deny funding for the Libya operation.
In fact on Tuesday Rep. Dennis Kucinich, D- Ohio, said he'd offer an amendment to the next spending bill that would prohibit funding for U.S. involvement in military operations in Libya. Congressional approval of Kucinich's amendment looks unlikely at this point, partly because Obama so far has kept the stakes low.
Rep. Edward Markey, D-Mass., who voted for the Iraq war resolution in 2002, said on MSNBC Monday as long as U.S. troops are not on the ground in Libya “and as long as no bloodshed is attributed to our young men and women, then I think it’s a good decision for the president.”