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Democrat Views of Unilateral Presidential War Power During Bush Years

Jack Goldsmith
Thursday, March 17, 2011, 9:24 PM
In anticipation of the growing likelihood of some form of U.S.

Published by The Lawfare Institute
in Cooperation With

In anticipation of the growing likelihood of some form of U.S. intervention in Libya, Michael Stransky of the Senate Republican Policy Committee this afternoon circulated an impish collection of Bush-era views by senior Obama administration and congressional Democratic officials “concerning the proper Congressional role in debating the use of aggressive war-like actions against the territory and forces of another sovereign country.”  Here is his list:
  • “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.” – Barack Obama Dec. 20, 2007.
  • S.J. Res. 23, clarifying that the use of force against Iran is not authorized by the Authorization for the Use of Military Force Against Iraq, implying in practice that if the President wanted to use force against Iran he would have to seek further Congressional authorization for that action (introduced on November 1, 2007 by Senator Obama).
  • “I just want to make it clear, speaking for myself, that if the President concluded he had to invade Iran, . . . he does need congressional authority to do that.  I just want to set that marker.” – Joe Biden, Jan. 11, 2007, S. Hrng. 110-153 at p. 107.
  • S. 759, prohibiting the use of funds for military operations in Iran except pursuant to a specific authorization of Congress (introduced March 5, 2007, co-sponsored by, among others, Senators Clinton and Kerry).
  • S. Res. 356, stating that any offensive military action taken against Iran must be explicitly approved by Congress before such action is initiated (introduced Oct. 25, 2007, co-sponsored by, among others, Senators Clinton, Durbin, Byrd, Dorgan, Feinstein, Murray, Stabenow, Whitehouse)

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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